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By June 1, 2012No Comments

Finding that a 41-year-old former tree-trimming foreman had presented sufficient evidence that a jury could find his employer’s stated reasons for his termination pretextual, the U.S. Court of Appeals for the Sixth Circuit has reversed a lower court’s grant of summary judgment for the employer, and allowed the employee’s age discrimination claim to proceed to trial. In Brooks v. Davey Tree Expert Company, the plaintiff, after working for the employer for 12 years, was assigned a new supervisor who almost immediately began making negative age-related comments to him. For instance, he allegedly told the employee that he was too old to be doing the kind of work he was doing, and, on one occasion, called him an “old fart.” The plaintiff was eventually terminated over an incident in which a crew member at the site where the plaintiff was working was injured by a falling tree. The plaintiff had been in his truck, and not out with his crew, at the time of the accident. The supervisor, determining that the accident might not have occurred if the employee had been out with the crew, reported his conclusion to the area supervisor, who terminated the employee based on the supervisor’s report.

After the plaintiff lost his age discrimination case on summary judgment, he appealed. In reversing the grant of summary judgment, the Court of Appeals noted that the age-based comments by the supervisor could be considered “probative of pretext,” even though the supervisor did not make the ultimate termination decision, because the area supervisor based his termination decision on the supervisor’s recommendation. In addition, the Court noted that the employer could not prevail on summary judgment based on the contention that it honestly believed that the plaintiff was responsible for the accident, because the employer had failed to articulate how or why it concluded that the accident would have been prevented if the plaintiff had been out with the crew, rather than in his truck.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (