In a recent case, the Western District of Virginia found for a plaintiff who claimed her employer retaliated against her for speaking out about age discrimination. There, management at the employer company made multiple age-related remarks to employees and eventually terminated an employee who spoke out about perceived age discrimination. Employers should view this as a “what not to do” or else they may similarly find themselves liable for discrimination claims.
Newell v. Carter Bank & Trust
In Newell v. Carter Bank & Trust, Patricia Alberta Newell filed suit against Carter Bank & Trust alleging retaliation under the Age Discrimination in Employment Act (“ADEA”). There, Newell began work at Carter Bank in 1999 as a Drive-Thru Teller and worked there for 21 years, serving as Assistant Vice President and Branch Manager at the time of her termination on May 1, 2020, at the age of 67.
Newell alleges that new management made a clear and systematic effort to terminate older employees in violation of the ADEA. Newell believes a fellow employee, Donna Burnopp’s, termination supports this belief. Burnopp was 69 when she was terminated in July 2019 and her position was split into three positions and filled by younger employees. During an August 2019 conversation, a supervisor mentioned Burnopp’s termination to Newell. Newell said that what happened to Burnopp “was not right,” and that she was going to tell the truth in Burnopp’s pending legal matter concerning age discrimination.
Management employees at Carter Bank repeatedly made age related comments, including: “all of us sitting around the table are getting older;” “the Bank needs to hire younger employees;” “Carter Bank needed to make room for these young people coming up;” “young people really like to learn unlike the old people;” and” it was time for long-term employees to retire so that younger tellers could keep their jobs.” Management repeatedly asked Newell when she would retire.
Newell was terminated in May 2020. Carter Bank told her she was being terminated for mishandling a form, but Newell claims she followed all instructions given to her regarding the form. Newell was replaced by a man in his thirties, who receives $8,000 more per year than Newell did in the same position. Newell filed suit alleging retaliation in violation of the ADEA. Newell argues that Carter Bank retaliated against her in violation of the ADEA because of her opposition to Carter Bank’s termination and discrimination of several older employees, specifically because: (1) she mentioned her participation in Burnopp’s EEOC investigation; (2) she told a supervisor she opposed how Burnopp’s termination was handled; and (3) she complained about Carter Bank’s alleged discriminatory practices.
Under the ADEA, it unlawful to discriminate against an individual because of the individual’s age. The ADEA also prohibits employers from discriminating against an employee who “has opposed any practice made unlawful by this section, or because such individual…has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.” To make a successful retaliation claim, a plaintiff must establish: (1) the employee was engaged in a protected activity through participation or opposition; (2) an adverse employment action was taken against the employee; and (3) there was a causal link between the protected activity and adverse action.
The court here noted that “when an employee communicates to her employer a belief that the employer has engaged in … a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” The court also stated that opposition conduct includes “utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinions in order to bring attention to an employer’s discriminatory activities.” The key question the court asks is “ whether a plaintiff’s conduct communicates to her employer a belief that the employer has engaged in … a form of employment discrimination.”
The court, here, noted that Newell’s actions occurred in front of Carter Bank’s management including direct supervisors, and that Newell’s statement that Carter Bank’s treatment of older employees was “not right,” sufficiently suggest that Newell opposed Carter Bank’s treatment of older individuals. Additionally, the court found Newell’s termination satisfies the second required element of an adverse employment action.
Regarding “a causal link between the protected activity and adverse action,” the court stated that a three or four-month period between the protected activity and adverse reaction is “too long to establish a causal connection by temporal proximity alone,” but other relevant evidence can be used to establish causation. This other evidence may include continuing retaliatory conduct and animus from the time of original opposition activity to the plaintiff’s termination.
The court here ultimately found that Newell sufficiently alleged continuing retaliatory conduct and animus to satisfy the causation requirement. The court explained that after her opposition actions in 2019, Newell was asked repeatedly about her plans to retire despite not conveying to management an intention to retire and Newell was reprimanded for failing to complete a drawer shortage form despite being on vacation at the time in question. The court also determined that Newell was terminated for a mistake which younger employees were often forgiven. Thus, the court determined Newell adequately alleged that her termination was causally related to her opposition activity.
What Does Newell v. Carter Bank & Trust Mean for Employers?
Employment discrimination cases, including claims of retaliation, are decided on a case-by-case basis. However, this case can be instructive as a “what not to do” case study. Here, management level employees repeatedly made negative age-related comments about older employees and continuously asked Newell when she was going to retire, despite her never mentioning plans to retire. Employers should make clear to management that comments related to age should not be made, particularly negative comments based on age. Employers should have policies in place and managers and human resource personnel should be trained on language and conduct to avoid and how to respond to allegations of discrimination. Additionally, here, Newell was terminated after vocalizing her opinion that Carter Bank discriminated against older employees. If an employee makes a similar claim, employers should make sure they do not take any adverse employment actions against that employee based on any complaint (either formal or informal) made. Employers should also be cautious that any adverse employment actions, including termination, could not be perceived as being made in response to an employee engaging in protected activity, as Newell did here. Employers must have a non-discriminatory or retaliatory basis for firing employees and evidence of this basis should be clearly detailed in the employee’s file. Employers should keep written records of any unsatisfactory work or inappropriate employee conduct so there is adequate documentation supporting an adverse employment action. This written record can help overcome allegations of discrimination or retaliation. Additionally, all employees should be treated the same for similar errors. Treating employees differently for the same infractions may be used as evidence of discrimination.
For 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.