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No age bias trial for ‘derogatory comments’

A 57-year-old milk delivery driver could not save his age bias case with testimony that his supervisor repeatedly said he was too old to be working. Applying the beefed-up “but for” test for claims under the Age Discrimination in Employment Act, a federal appeals court said derogatory comments may not be enough to win a trial.

Ralph Arthur testified that on Mike Reynolds’ first day as Arthur’s supervisor, Reynolds told him he was “too old to be here and I’m going to get rid of you.” A coworker corroborated that Reynolds told Arthur he was “too old to be working.”

Arthur claimed Reynolds left him at least 17 sticky-notes threatening termination. But the notes complained about Arthur’s job performance, not his age, Arthur admitted.

The company told a different tale, illustrated with a litany of customer complaints.

Pet Dairy claimed Arthur had damaged three truck bumpers by hitting objects with his work truck and frequently failed to inventory his loads or deliver enough milk to two big accounts, a Barnes & Noble store and the Lynchburg school division.

The bookseller allegedly demanded a change of driver after Arthur spilled a gallon of milk on its carpet.

Pet said the school division complained that Arthur left milk on outdoor loading docks, exposed to the weather; delivered cartons of milk covered in rust; often failed to provide enough milk; argued with school cafeteria managers; sped through school parking lots; maneuvered his hand truck at “breakneck speed” through school kitchens, creating a “safety hazard”; and exhibited a rude and hostile attitude. Ultimately, the school division gave the employer a choice of removing Arthur from the route or losing one of its most lucrative contracts.

Arthur also had crashed his milk truck into an SUV in 2003, striking it hard enough to send the SUV into a triple barrel roll, an incident Arthur described as a mere “tap” to the other driver’s vehicle, according to the court’s Feb. 9 unpublished opinion in Arthur v. Pet Dairy.

To shore up his case, Arthur pointed to the fact that he was not formally disciplined during the six years prior to his termination, and was not reassigned to a less important route.

Despite the sharply conflicting accounts of Arthur’s tenure, the 4th U.S. Circuit Court of Appeals upheld summary judgment for the employer.

The driver’s evidence was “simply insufficient for a reasonable jury to find” that he met his employer’s legitimate job expectations, the court said in its per curiam opinion.

As to the alleged supervisor comments, the court said it has not yet decided on an “analytical framework for determining if derogatory comments are direct evidence of actionable age discrimination.” The panel adopted a 5th Circuit test from Jackson v. Cal-W. Pkg. Corp.

It also agreed with the majority of circuits that have considered the issue and concluded that Gross v. FBL Fin. Servs. Inc. “elevated the burden of proof many courts applied to ADEA claims.”

The district court acknowledged the supervisor’s alleged comments appeared to reflect a discriminatory attitude and to bear on the termination decision, but the disparaging comments were not “contemporaneous to the adverse employment action,” the district judge said.

At best, the evidence demonstrated that age was simply a motivating factor in the firing, not the “but for” cause of Arthur’s termination.

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