The Facts

In Westmoreland v. TWC Administration, LLC, the Fourth Circuit Court of Appeals, which has federal appellate jurisdiction for Maryland, Virginia, North Carolina, South Carolina, and West Virginia, upheld the jury’s age discrimination verdict for the plaintiff, Glenda Westmoreland. (Case No. 18-1600, May 22, 2019).

Glenda Westmoreland worked for Summit Cable, a predecessor of Time Warner Cable (“TWC”), and its successor corporations for over 30 years, until she was fired by TWC in August 2015, when she was 61 years old. During her employment, Westmoreland performed well and committed only two minor infractions. In 2013, TWC shifted its focus from customer service to sales and implemented new expectations, which Westmoreland struggled to meet. However, her 2014 performance evaluation rated her as “successfully meets expectations” in every category except “growing and developing associates,” which she was rated as “partially meets expectations,” and she received a raise in February 2015.

In July 2015, Westmoreland was terminated for instructing a subordinate to backdate a form in violation of TWC’s policy. Prior to her termination, her supervisor had told her “not to worry about it” and described the matter as “just a slap on the wrist.” TWC employees testified that lesser sanctions were available, but TWC chose to fire Westmoreland. While escorting Westmoreland from the building, a supervisor stated “Oh, girl, you don’t have nothing to worry about. You’ll get another job. Just go home and take care of those grandbabies.” TWC chose one of Westmoreland’s subordinates, a 37-year-old, to replace her. TWC did not take any disciplinary action against the subordinate that backdated the form, who was then 43 years old. Westmoreland filed suit claiming TWC discriminated against her on the basis of age. 

The Decision

Under the ADEA, it is unlawful for an employer to discharge an individual because of the individual’s age. If a plaintiff establishes a prima facie case of age discrimination, the burden shifts to the employer to provide evidence that it had a legitimate, nondiscriminatory reason for its termination decision. The burden then shifts back to the plaintiff to prove that the legitimate reasons offered by the employer are a pretext for discrimination.

Westmoreland’s evidence of pretext included that she was nearly 61 years old when fired; TWC terminated her after 30 years of consistently satisfactory work and replaced her with a 37-year-old; Westmoreland’s supervisor made a condescending and age-related remark immediately after the firing; and all TWC decisionmakers were aware of Westmoreland’s advanced age. Additionally, although TWC’s sole justification for its action was Westmoreland’s backdating of a form in violation of company policy, the offense was isolated, lesser sanctions were available, and company officials had advised her that the offense was not serious and she had nothing to worry about. 

The court concluded that there was sufficient evidence for a jury to determine that TWC’s justification was pretextual and that the company fired Westmoreland to make room for a younger worker. The court noted that firing Westmoreland for one infraction that did not require termination could be viewed as such an extreme overreaction as to be pretextual. The court also found that the “grandbabies” comment made to Westmoreland by a supervisor could have been found to indicate an age-based animosity towards Westmoreland. 

The Takeaways

The court here gave weight to the supervisor’s “grandbabies” comment, which could indicate age-based bias. While the court noted that some comments will be seen as insufficient to indicate bias, comments like this may be probative of discrimination and helpful to a plaintiff’s case. This highlights the importance for employers and employees involved in the termination process to avoid making any comments relating to a protected classification, such as an employee’s age, that may be indicative of bias. 

Additionally, best practice for employers includes having a clear policy on disciplinary measures and following that policy uniformly for all employees. Employers should take added caution to ensure correct procedures are followed when terminating or reprimanding an employee for infractions, when lesser punishments are available. Here, the fact that TWC could have taken lesser action against Westmoreland, but instead fired her despite her otherwise satisfactory record likely contributed to the jury’s finding that the “extreme” punishment was pretextual. 

Employers should also be cautious when decisions can be viewed as changing stances, such as if a supervisor indicates an infraction isn’t a big deal, but later results in termination. Such stark contradictions could contribute to a finding of pretext. 

If you need more guidance or information, contact the employment law experts at General Counsel, PC today at 703-556-0411 or mgreen@gcpc.com. Attorneys at General Counsel, PC are specialized in labor and employment law and have experience working with employers and individuals throughout Virginia, Maryland, and the District of Columbia.