By Matthew R. Brunkhorst

    Missouri employment lawA terminated employee’s claim of age discrimination under Missouri law was tossed out by a trial court after it determined that an indirect supervisor wasn’t a decision maker in the employee’s termination and his age-related comments were only “stray remarks.”

    On appeal, however, the U.S. 8th Circuit Court of Appeals (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) breathed new life into the employee’s discrimination claim when it concluded that the indirect supervisor’s comments and attendance at the termination meeting may establish his involvement in the termination decision.

    In addition, the indirect supervisor’s age-related comments provided direct evidence of bias and could therefore be a contributing factor in the employee’s termination.

    Indirect supervisor makes age-based comments

    In May 2010, Cynthia Thomas, a 53-year-old woman, was hired to work as an account liaison at Heartland Employment Services LLC. A hospice administrator at Heartland, G. Dean Hagen, was Thomas’ “indirect supervisor” and had the authority to contribute to any decision to terminate her employment.

    According to another Heartland employee, in June or July 2011, Hagan stated “that older people didn’t work as fast [nor] were as productive as younger people” and made comments about having “fresh blood, younger employees.” He also referred to Thomas as “the old short blond girl.”

    Thomas’ position required her to travel to Heartland’s clients to establish and maintain relationships. She was permitted to claim mileage reimbursement for her travel. After hearing that she might not have actually visited clients she claimed to have visited, Heartland’s regional manager of business development and another employee audited 3 weeks’ worth of her mileage reimbursement claims. Her reimbursement claims were compared to her weekly call plans, which described her projected travel for the upcoming week.

    The audit revealed that Thomas claimed more reimbursement miles than she listed on her call plans. The regional manager concluded that she had falsified her reimbursement claims and she should therefore be terminated.

    ‘Just sitting in’ at termination meeting

    The regional manager informed Hagen of the audit results and stated that they would need to discharge Thomas. Hagen responded that he would just sit in on the termination meeting as a witness. However, another Heartland employee reported that Hagen stated before going into the termination meeting that “he was going to let her go.”

    The termination meeting included Thomas, the regional manager, another Heartland employee, and Hagen. At the meeting, the regional manager informed Thomas that her employment was being terminated because she had falsified her mileage reimbursement claims.

    Thomas denied she falsified her records and claimed that she took additional trips that weren’t included in her projected travel plans. She stated that she could provide records explaining the discrepancies.

    According to Thomas, the regional manager rejected her explanation. She claimed that Hagen also dismissed her response by stating that her termination “was a decision their decision.” Although she was unsure who had decided to discharge her, she noted that “they just used ‘we.’

    Soon after her discharge, Hagen reportedly told a Heartland client who expressed concern about Thomas’ departure that “he likes to keep himself surrounded with young people.”

    Thomas brought a suit against Heartland, Hagen, and others for age discrimination under the Missouri Human Rights Act (MHRA). The trial court threw out the case before trial after finding there was no direct evidence of discrimination.

    According to the court, Hagen was not a decision maker or closely involved in the termination decision, and his age-related comments were “stray remarks.” Thomas appealed the decision to the 8th Circuit.

    8th Circuit reverses

    On appeal, the 8th Circuit explained that Missouri law prevents an employer from discharging an employee if her age is a contributing factor in the decision.

    To establish a case, the employee must provide direct evidence of a specific link between the allegedly discriminatory animus and the termination decision. That can include evidence of conduct or statements reflecting an allegedly discriminatory attitude by managers involved in the decision-making process.

    In reviewing the facts of this case, the 8th Circuit reasoned that a jury could conclude that Hagen was a decision maker or was closely involved in the decision-making process. Specifically, he was Thomas’ “indirect supervisor,” had authority to contribute to the decision to terminate her, and was at the termination meeting, where the words used (they, their, and we) indicated that a group of managers, including Hagen, made the decision to terminate Thomas.

    Further, his statement that “he was going to let her go” further supported her claim that he was involved in the decision-making process.

    The court concluded that the age-based comments Hagen allegedly made in the workplace were sufficiently related to Thomas and the decision-making process to constitute direct evidence of discrimination.

    The court determined that the case should go to trial because a jury could infer that Hagen affirmed and took part in Thomas’ discharge, he was motivated by age-based animus, and his bias was a contributing factor in her termination.

    Bottom line

    You should take this case as an opportunity to revisit your termination procedures and employee discipline policies and, if necessary, restructure them to prevent a similar situation from occurring at your business. Specifically, it’s important to consult with the appropriate managerial personnel and determine who should be involved in disciplinary actions, including termination.

    Your decision makers must be well trained in handling sometimes tense circumstances and extensively coached on providing a clear statement or instructions to the employee who’s being terminated or disciplined. A clear decision maker should always be identified and documented when adverse actions are carried out to avoid confusion about who the decision maker was.

    In addition, it’s imperative to review appropriate workplace behavior and language with all of your employees. Notably, comments about age should be made carefully, if at all, when you’re describing an employee or her employment. Even age-based comments voiced in a joking manner or with no discriminatory motive may offend some people and form the basis of a future lawsuit.

    If anyone is overheard using discriminatory language in the workplace, he should be counseled or disciplined accordingly. Reports of age-based comments should be taken seriously, thoroughly investigated, and documented. At no point should an employee who has made age-based comments be involved in the decision to discipline or terminate an employee who’s older than 40.

    Matthew Brunkhorst, a contributor of Missouri Employment Law Letter, can be reached at