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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Is A Deviation From Company Policy Evidence Of An Age-Based Discriminatory Discharge?

older employee

The Age Discrimination in Employment Act (ADEA) protects employees who are over forty years of age from discrimination on the basis of age.  Having long fought for the rights of employees who have been subjected to age discrimination, our Citrus County, Florida age discrimination attorneys have learned that employers often engage in selective enforcement of company policy when making adverse employment decisions affecting older employees.  In other words, inconsistent policy enforcement can lead conclude in age discrimination against employees. In some circumstances, employers enforce a company policy when taking an adverse employment action against an older employee, but do not enforce the same company policy against younger employees.  In other circumstances, employers act contrary to company policy when taking an adverse employment action against an older employee, but nonetheless adhere to the same company policy when making employment decisions affecting younger employees.

An employer’s failure to follow its own company policy when making adverse employment decision against an older employee can serve as circumstantial evidence of age discrimination.  As explained by the U.S. District Court for the Northern District of Indiana in Graham v. Bendix Corp., 585 F.Supp. 1036 (N.D. Ind. 1984), when an employer acts contrary to its own company policy and treats an older employer more severely than younger employees, that is evidence that the employer’s stated reasons for the adverse employment action “are pretexual attempts to put an acceptable face on the practice of discrimination.”  The recent decision by the U.S. District Court for Maine in Pennington v. Hannaford Bros. Co., LLC, 2018 WL 2746577 (D. Maine June 7, 2018) is instructive in showing that an employer’s deviation from company policy when taking an adverse employment action against an older employee can be used to establish a discriminatory discharge based on age.

Employer Investigates Older Employee On Medical Leave

In that case, W. Terrance Pennington (Pennington) brought an action against his former employer, Hannaford Bros. Co., LLC (Hannaford), claiming that he was discharged, in relevant part, because of his age in violation of the ADEA.  Pennington had worked for Hannaford for over thirty years, most recently as the Produce Manager at Hannaford’s store in Maine.  At the time of his termination, Pennington was 58 years told and suffered from heart disease, knee and back impairments, and a shoulder injury.

During his employment at Hannaford, Pennington took medical leave on the following occasions:  after a heart attack in 1998; to recover from back surgery in 2001; for a knee or hip injury in 2012; and for a shoulder impingement syndrome and rotator cuff tear in 2015.  After his return from leave for shoulder problems in 2015, Pennington continued to have pain in his shoulder and took another medical leave in 2016 to have surgery.  When Pennington returned from the leave in March 2016, the Store Manager asked him “are you sure you can handle” an upcoming remodeling of the store where Pennington worked.

While Pennington was on leave for his shoulder surgery, an employee notified Hannaford that Pennington had instructed employees to violate Hannaford’s fruit packaging and dating standard practices.  While Pennington was still on leave, Hannaford launched an investigation into his compliance with the company’s standard practices.

Failure To Follow Company Policy During Investigation

On the day of his return from medical leave, the Store Manager interviewed Pennington about his alleged violation of company standard practices.  Pennington admitted to engaging in actions that would constitute a violation of the company’s standard practices.  However, Pennington denied that the Store Manager asked him whether he knew that his actions violated the company’s standard practices.  Pennington claimed that had he been asked, he would have stated honestly that he believed he was complying with company standard practices.

Although he never asked Pennington whether he knew that his actions violated the company’s standard practice, the Store Manager concluded that Pennington deserved immediate termination without progressive discipline because Pennington had admitted that he knew he was violating company standard practices.  Significantly, although company policy required the obtaining of a written statement during disciplinary investigations, Hannaford never obtained a written statement from Pennington during the course of the investigation.  Because of the failure to follow company policy, Pennington’s purported admission that he knew that he was violating company standard practices was not memorialized in writing.

Deviation From Company Policy Is Evidence Of Discrimination

Hannaford filed a motion with the trial court seeking dismissal of Pennington’s age discrimination claim.  In doing so, Hannaford asked the trial court to rule that Pennington’s age discrimination claim was meritless and Pennington was not allowed to bring his age discrimination claim before a jury.  The trial court denied Hannaford’s motion for dismissal and ruled that Pennington’s age discrimination claim must be resolved by a jury.

In denying Hannaford’s motion for dismissal, the trial court focused on Hannaford’s failure to obtain a written statement from Pennington during the course of the investigation in violation of company policy.  Hannaford’s “deviation from its established company practice,” the trial court found, was evidence that the proffered explanation for Pennington’s dismissal was a pretext for age discrimination.  The trial court also focused on the Store Manager’s question to Pennington about whether he was sure that he could “handle” the store remodeling.  The trial court found that “[a] reasonable factfinder could reasonably interpret [the Store Manager’s] question as suggesting his concern about Pennington’s ability to perform his job because of his age and medical condition.”  Consequently, the trial court concluded that Pennington had produced sufficient evidence for a jury to find that Hannaford’s proffered reason for the termination was a pretext for age discrimination.

Free Consultation With Citrus County Age Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have almost twenty years of experience litigating age discrimination claims.  If you have been the victim of age discrimination or have questions about an employer’s failure to follow company policy when making an employment decision, please contact our office for a free consultation with out Citrus County, Florida age discrimination attorneys.  Our employee rights law firm takes age discrimination cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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