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Employer’s “Dinosaur” Remark to Older Employee Precludes Summary Judgment

By Edgar M. Rivera, Esq.

On March 12, 2019, in Cyr v. Hannaford Bros. Co. LLC, the District Court of Maine denied summary judgment on an age-discrimination claim, reasoning that a jury could find that the proffered reason for Plaintiff Robert Cyr’s discharge was pretextual, given inconsistencies in the evidence regarding the Defendant Hannaford Bros. Co. LLC’s investigation and the supervisor’s ageist comment.

In 1983, Cyr began his employment with Hannaford, a trucking company, as a dispatch supervisor.  In October 2015, Bruce Southwick became Cyr’s supervisor.  Later that year, Cyr confided in a coworker that he did not agree with the direction of the company and so was considering retiring in 2016.  When Southwick learned of that conversation, he asked Cyr about his retirement plans.  Then age 59, Cyr responded that he did not intend to retire until he was 67.

Following that conversation, Southwick allegedly began giving Cyr the cold shoulder, ended one of Cyr’s long-term projects without consulting him, and criticized his views about company policy by saying the company needed to move away from Cyr’s “dinosaur age related theories.”

In early 2016, Southwick put Cyr on a performance improvement plan for Cyr’s behavior regarding his criticism of a vehicle-speed policy and a management hiring decision. Southwick also took other actions against Cyr, such as requiring that he change his schedule and taking away another of his projects.

In the summer of 2016, Hannaford conducted an audit of the drivers’ logs and identified a number of edits made by Cyr that appeared to be falsified.  Hannaford confronted Cyr, who could not recall exactly why he had made the edits in question, as he had made hundreds of edits during the three weeks preceding the meeting.  Cyr asked for time to research the edits at-issue, but Hannaford placed him on administrative suspension pending further investigation.

Hannaford then “investigated” Cyr; however, there was no indication that Hannaford spoke to any of the drivers whose logs were at issue during their investigation, and, while Southwick claimed that he had confirmed with other Hannaford employees that Cyr had violated rules, those employees denied awareness of any allegations against Cyr.  In response, Cyr complained that he was targeted in the audit because of his age.  He was fired less than two weeks later for allegedly falsifying the logs.  Hannaford then replaced Cyr with a 38-year-old.

 While other claims were dismissed, the court denied summary judgment on the age discrimination claim. The court found that Cyr could demonstrate to a jury that Hannaford’s stated reason for the termination (falsification of logs) was pretext.  First, there were numerous contradictions between Southwick’s and other employees’ accounts of the investigation.  “One plausible interpretation of these myriad contradictions is that Southwick—the key decision maker—misrepresented the breadth of his inquiry to mask that it never actually convinced him of Plaintiff’s guilt, and that he fired Plaintiff for a different reason,” the court said.  Those contradictions, paired with the evidence that Southwick never interviewed any other dispatchers or any of the drivers involved, and refused to allow Plaintiff to research the edits, allowed a fact finder to infer that the inquiry was a pre-ordained sham (and age the real reason).

Plaintiff also produced evidence that would allow a jury to find that Southwick’s real reason for terminating Plaintiff was his age.  The court found that it was difficult to interpret Southwick’s “dinosaur age related theories” comment as anything other than disdainful of Plaintiff’s advanced age.  Moreover, according to the court, this comment was highly probative of discriminatory animus because: (1) the decision maker in Plaintiff’s termination made it, (2) it was temporally proximate to that adverse action, and (3) it was causally connected to that adverse action.

In addition to this comment, the record revealed two other pieces of evidence that the court believed could support a finding of discriminatory animus.  First, the deployment of younger replacements can serve as evidence of age discrimination.  In this case, Hannaford replaced Plaintiff with someone about twenty years Plaintiff’s junior.  Second, proof that a defendant’s explanation is unworthy of credence is another form of circumstantial evidence that is probative of intentional discrimination.  In this case, Southwick’s testimony permitted such a suspicion, and, therefore, could lend further support to a finding of age discrimination.  All told, Plaintiff produced sufficient evidence of pretext and age discrimination to survive summary judgment on this claim.

If you feel that your employer has discriminated against you on the basis of age, contact The Harman Firm, LLP.

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