76-year old Carlyn Johnson sued under the Age Discrimination in Employment Act after he was fired from his position with Securitas Security Services USA, Inc. The district court granted Securitas summary judgment, finding that Johnson failed to submit sufficient evidence to show that a genuine question as to age discrimination remained for trial. The Eighth Circuit affirmed.
Johnson worked for Securitas as a utility security officer, a position that permitted him to fill in for other security guards as needed, rather than working regular shifts or posts. Johnson had a reputation for being very dependable and never refusing a shift. One of Johnson’s managers, Hesse, even referred to him as “Superman.” Hesse, however, also expressed concerns to Johnson and other supervisors about Johnson’s ability to work long hours and multiple consecutive shifts. Hesse compared Johnson to Hesse’s retired father who worked beyond his capabilities and often told Johnson that he was “too old” and that it was “time to hang up his Superman cape and retire.”
Johnson was working a 4pm to 8am shift when the Securitas vehicle he was driving collided with a stationary semi-trailer. Securitas’ policy required that Johnson report the accident as soon as possible, but Johnson did not have access to a cell phone or radio at the job site. Johnson continued to patrol the site until about 7am, when he left it to return the damaged vehicle to the Securitas office. At the direction of Securitas manager, Charlie Bunch, Johnson returned the damaged vehicle and went home. Bunch later learned that Johnson’s shift actually ended at 8am and included information about Johnson’s early departure from the job site in his report. Bunch informed Sherri Parker, Securitas’ HR manager, of the accident and of Johnson’s early departure as well. The Securitas Security Officer Handbook listed an unauthorized departure as an offense that could result in immediate termination.
The following morning, Hesse called Johnson and again told him that it was “time to hang up his Superman cape and retire.” Johnson then received a call from Parker, who gathered information about the accident and Johnson’s age. She informed Johnson that his employment with Securitas had been terminated. Johnson made several complaints to the Securitas in-house hotline, claiming that his firing was the result of mistake and age discrimination. Ultimately, Johnson filed suit.
Where there is no direct evidence of discrimination, age discrimination claims are considered under the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A plaintiff who presents sufficient evidence of age discrimination 1) creates a presumption that the employer engaged in unlawful discrimination, and 2) shifts the burden to the employer to show a legitimate and non-discriminatory reason for its actions. If the employer shows a legitimate and non-discriminatory reason, the presumption is eliminated and the burden then shifts back to the employee to show that age was the “but-for” cause of termination. Gross v. FBL Financial Services, Inc., 557 U.S. 169 (2009).
Securitas articulated a legitimate and nondiscriminatory reason for terminating Johnson by showing that Johnson made an early and unauthorized departure from the job site and delayed reporting the accident. This shifted the burden to Johnson to show that Securitas’ articulated reasons were merely pretext for age discrimination. The only possible evidence of age discrimination in this case was Hesse’s age-related comments. However, there were three decision makers who determined that termination was proper – Hesse, Bunch, and Parker – and the Eighth Circuit declined to speculate that Hesse prevailed over the decisions made by Parker and Bunch.
Johnson also argued that, because Securitas had not fired any other employee for similar reasons, his situation merited an inference of disparate treatment. But the test for disparate treatment is rigorous. A plaintiff must show that he and the employees outside of the protected group were similarly situated in all relevant aspects – including having dealt with the same supervisor, being subject to the same standards, and having engaged in the same conduct. The Court declined to find that a material question for trial remained where Johnson presented no evidence to show that Securitas had not fired any other employee for the reasons it fired Johnson.
Johnson also failed to demonstrate a material issue for trial when he argued that Securitas’ articulated reasons were pretext because Securitas repeatedly changed the reasons it gave for Johnson’s termination. But a change in an employer’s reason for termination is probative of pretext only if the discrepancy is substantial. Securitas maintained that the primary reason for Johnson’s termination was his unauthorized early departure from the job site.
The Court thus concluded that after Johnson established a prima facie case of age discrimination, and Securitas articulated a legitimate and non-discriminatory reason for termination, Johnson’s evidence failed to show that his age was the but-for cause of his termination. Accordingly, the Eighth Circuit affirmed the district court’s decision to grant summary judgment.