In a recent case, the Eastern District of Virginia found evidence of age discrimination by an employer after an employee was forced to resign following age-related comments. Although the plaintiff here had multiple examples of unprofessional conduct that could have constituted a legitimate basis for termination, the employer did not take an adverse employment action against the 54-year-old employee until he asked a 21-year-old employee at a neighboring business out to dinner. After remarking about the inappropriate conduct and referencing the plaintiff’s age, the employer forced the plaintiff to resign. Based on this, the court found sufficient evidence of age discrimination.
Granet v. Presidio, Inc.
In Granet v. Presidio, Inc., Brett Granet was hired by Presidio, Inc. on May 14, 2018 as an account manager. Granet was 54 years old when he was hired. During his eight-month employment with Presidio, Granet acted unprofessionally on a number of occasions, including “speaking incoherently” at a client lunch, sending proprietary information to the wrong party, failing to meet sales goals, and making inappropriate comments to a colleague. Granet regularly interacted with Rachel Riles, a 21 years old employee of Morton Consulting, which was located in the office suite next to Presidio. On January 22, 2019, Granet sent Riles a message on LinkedIn stating that he liked her and asking her to dinner. Riles replied that she was uncomfortable by his interest and reported the message to the Morton Consulting human resources manager. The report was relayed to the Presidio Vice President of Sales, Bob Michie.
The day after Granet’s message to Riles, Michie called Granet into his office and question why he was “asking a woman much younger than yourself out to dinner.” Michie informed Granet that he had notified human resources to put the ball “in motion” and that he would likely lose his job. Michie sent Granet home and told him to wait for next steps. In his email to human resources, Michie mentioned that Granet had been harassing a 21-year-old. Michie also noted Granet’s unprofessional interactions and stated he wanted to move forward with terminating Granet or allowing him to resign. On January 25, Granet was told he could resign or be terminated and he submitted his resignation letter that day. Granet filed suit claiming he was forced to resign because of his age.
The Age Discrimination in Employment Act (“ADEA”) prohibits employers from discriminating against employees because of their age. To make a successful age discrimination claim, a plaintiff must show that his employer took an adverse employment action against him because of his age. The court here noted that it’s not sufficient that age is one of multiple motives for an employment decision. Instead, an employee must establish that the employer “would not have fired” him in the absence of age discrimination.
Here, the court noted that “derogatory comments about an employee’s age may be direct evidence of age discrimination.” The court reasoned that Michie’s comment to Granet after his message to Riles “suggests that Michie found Granet’s overture of Riles all the more inappropriate because of Granet’s age.” Combined with the fact that the comment was made just two days before Granet’s forced resignation by Michie, the individual responsible for hiring and firing Granet, the court determined the comment was sufficient to establish direct evidence of age discrimination. Presidio claimed it had legitimate, nondiscriminatory reasons for the employment decision, including Granet’s unprofessional and inappropriate workplace conduct. However, the court noted that Michie’s comment was made the same day he sent Granet home and “got the ball rolling” on his forced resignation. The court determined there was sufficient evidence to establish that if Granet and Riles were closer in age, Michie wouldn’t have found Granet’s behavior inappropriate and would have allowed his employment to continue, at least beyond January 25. Thus, Granet established that “but for his age, he would have remained employed” beyond January 25.
What Does Granet v. Presidio, Inc. Mean for Employers?
Here, although Presidio arguably had ample legitimate reasons to terminate Granet, the court found evidence of age discrimination based on age related comments made to Granet around the time of his forced termination. The key takeaway from this case should be to avoid all mention of protected traits, here age, when communicating with employees, especially in reference to employment related decisions.
Employers must have a non-discriminatory basis for taking adverse employment actions against employees and evidence of this basis should be clearly detailed in the employee’s file. However, Granet shows that having legitimate reasons for such employment decisions may not always be sufficient to avoid liability. Employers must also take care to avoid any discriminatory conduct or perceived discriminatory conduct. Employers, especially those responsible for hiring and firing decisions, should avoid any communication about protected traits when speaking to or about employees. Employers should also keep in mind the timing of potentially discriminatory conduct and employment decisions. Here, the fact that Granet was forced to resign just days after Michie made age-related comments impacted the court’s decision.
If you need more guidance or information, contact the employment law experts at General Counsel, PC today at 202-360-4230. Attorneys at General Counsel, PC are specialized in labor and employment law and have experience working with business owners and individuals across Virginia, specifically in Fairfax County, Arlington, Loudoun County, and Prince William.