Certain Evidence In Age Discrimination Cases Found Improper by Court of Appeals

Recently, the Fifth Circuit Court of Appeals reversed a Baton Rouge jury’s award of over $260,000 to two executives who sued their former employer claiming they were terminated because of their age. The case, Wyvill v. United Companies Financial Corp., represents the kind of pro-employer decision that has been traditionally rendered by the Fifth Circuit (which hears appeals from federal courts in Texas, Louisiana and Mississippi) in age discrimination cases.

Plaintiff Gerald Waldrop’s problems at work began with his abusive behavior towards his staff. According to the Company, he cursed at employees and threatened to beat up one subordinate. Plaintiff Ridgley Wyvill’s problems at work started, according to the Company, when he placed “disruptive” telephone calls to other employees about Waldrop’s termination.

The significance of the Wyvill decision is that it outlines certain types of evidence that should not be admitted against employers in age discrimination cases. The court of appeals held that the trial court should not have allowed witnesses other than Waldrop and Wyvill to testify as to their belief that they were also victims of age discrimination because those witnesses worked for different supervisors, worked in different divisions of the Company, or were terminated long before or after the Plaintiffs were terminated.

The court also held that comments attributed to the Company’s CEO were not direct evidence of discrimination, but merely “stray remarks.” The Plaintiffs claimed that the CEO stated:

• “the world had passed some of the older employees by”
• “that the older employees were just too old to get the job done and that we should either find another position for them or terminate them”
• “he wanted the company to be mean and lean, and he wanted to go to a young, aggressive group of people”
• “he wished the older men in corporate headquarters would go away so that he could get some new blood in the company”

The court ruled that these comments did not allow the jury to conclude that age was the reason for the terminations because none of the comments were made in connection with Waldrop or Wyvill’s terminations. The court of appeals also rejected the Plaintiff’s claims that the Company “built files” on older employees to document performance problems and cover up age-motivated terminations. The court of appeals was not persuaded by the argument, stating, “the act of maintaining disciplinary files on employees, without more, is not illegal under the ADEA.” Note, however, that there was no evidence presented at trial that the Company documented files any differently with regard to older employees than younger employees.

Despite all of the pro-employer rulings made by the court of appeals in Wyvill, it should be given a yellow “caution” flag in light of the United States Supreme Court’s recent reversal of another Fifth Circuit Case, Reeves v. Sanderson Plumbing, Inc.

Reeves was decided less than two weeks after Wyvill. While some of the rulings discussed above might not have changed, it is very possible that a different result would have been reached in Wyvill had the Fifth Circuit had the benefit of the Reeves decision when it wrote its opinion.