The Fourth Circuit Court of Appeals (covering North Carolina and South Carolina) recently upheld a jury verdict for plaintiff Glenda Westmoreland in Westmoreland v. TWC Admin. LLC, No. 18-1600 (4th Cir. May 22, 2019). One judge’s fiery dissent has people talking about more than the typical employment discrimination case. In it, Judge Niemeyer proclaims:
Congress would croak to learn that the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., would entitle an employee to recover in the circumstances of this case. I too croak, in harmony.
But was anything really that objectionable about upholding the jury’s award for Ms. Westmoreland? When boiled down, it should really be relatively uncontroversial.
The court upheld a verdict for Ms. Westmoreland in her lawsuit against Time Warner Cable. Ms. Westmoreland easily established the first part of her case (called the prima facie case).
PRIMA FACIE CASE OF AGE DISCRIMINATION
- At the time of her termination, Westmoreland was 61 and in a protected class under the Age Discrimination in Employment Act (ADEA).
- Westmoreland was well-qualified and meeting the legitimate expectations of the job. During her three decades with Time Warner, she had just two infractions before the incident that allegedly led to her termination.
- Time Warner fired Westmoreland. Therefore, there was an adverse employment action.
- The company replaced her with a younger 37-year-old employee.
Crickets. That’s what one should hear at this point in the case. Ms. Westmoreland established her prima facie case. She knocked it out of the park. If the jury heard nothing more, it could infer age discrimination.
THE COMPANY’S STATED REASON FOR TERMINATION
Now, it’s Time Warner’s turn to give the jury the its side of the story. The Company said that its sole reason for firing Westmoreland was her direction to another employee to change the date on a form. This presented “a lot of trust and integrity issues.”
On July 21, 2015, Westmoreland held a meeting with a substantially younger subordinate. On July 27, Westmoreland met with this subordinate again and asked her to complete a form recording the July 21 meeting. The subordinate signed and dated the form July 27. Ms. Westmoreland whited out this date and had the subordinate write July 21 instead. Ms. Westmoreland emailed the completed form to management. This led to an HR review. Ms. Westmoreland told Time Warner that she changed the date on the form to reflect the date of the meeting. The Company told Ms. Westmoreland not to worry about it. But then, on August 14, Time Warner fired her.
In this legal tennis match, Ms. Westmoreland smashed a vicious prima facie serve at Time Warner. The company returned serve and the ball is back in Ms. Westmoreland’s court.
MS. WESTMORELAND CONVINCED THE JURY THAT TIME WARNER LIED
According to the jury, Ms. Westmoreland smashed a forehand winner down the line in response. Game. Set. Match. Since the first two phases of the case were uneventful, the final step (call the pretext stage of the analysis) must contain the croak-inducing material.
Ms. Westmoreland had 30 years of good performance with Time Warner. Four Company officials were involved in Ms. Westmoreland’s termination, and they all testified that they had no prior issues with Ms. Westmoreland’s “integrity.” Time Warner admitted that it could have taken less serious disciplinary measures, but chose not to in this case. The Company did not discipline the substantially younger subordinate involved in the same white-out incident. Further, the Company first told Westmoreland that the infraction was not a big deal, but then completely reversed course and fired her over that very conduct. The only evidence required in this stage of the case is that which would allow a reasonable juror to disbelieve the employer’s explanation. Ms. Westmoreland leapt high over that bar by presenting several pieces of evidence that suggested that Time Warner did not really fire her over the white-out incident.
What’s more? Ms. Westmoreland admitted an age-biased comment into evidence. She testified that, right after learning that she had been fired, one of the four supervisors told her: “Oh, girl, you don’t have nothing to worry about. You’ll get another job. Just go home and take care of those grandbabies.” The supervisor did not deny this comment—she said that she could not recall.
- Westmoreland established her prima facie case.
- Westmoreland cast doubt on Time Warner’s claimed explanation.
- This is enough under the law to allow the jury to conclude that age bias played an illicit role in Westmoreland’s termination.
Crickets; not Croaks. This is how the law should play out. Nevertheless, Westmoreland tackles legal issues worth diving into.
The Court takes on “pretext-plus,” which, despite being bad law, just won’t go die. Before the world heard the words “hanging chad,” the U.S. Supreme Court decided Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). There, the Court resolved a disagreement between lower courts around the country. Some of these lower courts—including North Carolina and South Carolina—were applying a “pretext-plus” standard in employment discrimination cases. That is, they required employees to show additional evidence of actual discrimination at the final, “pretext” stage of the analysis in addition to evidence that the employer’s stated reason for termination was not its real reason for adverse action. The Reeves court rejected this heightened standard.
Since then, the law is that employees need only present evidence that would allow a reasonable jury to disbelieve the employer’s explanation. No additional evidence is required. If an employee establishes a prima facie case, he or she creates a presumption that the employer unlawfully discriminated. If the employer’s explanation for its decision is not worthy of belief, then the jury is allowed to conclude that the employer lied to cover up discrimination.
This analysis impacts nearly every employment discrimination case at the summary judgment phase (when the company tries to get the case dismissed without a trial). Although the pretext-plus era of employment discrimination history has been over for almost 20 years, most company lawyers’ briefs continue to act as if Reeves never happened. In Westmoreland, like in Wilson v. Phoenix Speciality Mfg. Co., 513 F.3d 378, 387 (4th Cir. 2008), the Court got the pretext-plus analysis right. “Pretext-plus” is a thing of the past and should stay there.
Westmoreland’s supposed croak-factor rings hollow. The law was applied as it should be. The only thing unusual about Westmoreland in this summary-judgment era is that it was decided by a jury at all. In a country that enshrined the right to a jury trial in its Declaration of Independence, this decision should be encouraging. It certainly isn’t something to croak about.
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