Eighth Circuit 9-3 Dismisses Age Bias Claim Of Worker Told to ‘Hang Up Superman Cape'

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By Jay-Anne B. Casuga

Oct. 7 — A former Missouri security guard who was allegedly told by a supervisor to “hang up his Superman cape and retire” and then fired at age 76 lacks a triable age discrimination claim because he failed to show that the stated reasons for his termination were pretextual, the U.S. Court of Appeals for the Eighth Circuit 9-3 held Oct. 7.

In August 2013, a split three-judge appellate panel reversed summary judgment to Securitas Security Services USA Inc. and revived Carlyn Johnson's Age Discrimination in Employment Act claim, with the majority finding material factual disputes concerning pretext (165 DLR AA-1, 8/26/13).

The full Eighth Circuit agreed to rehear the case. The majority rejected several arguments made by Johnson in an attempt to raise a jury question regarding pretext, including evidence of impermissible age-related comments by a supervisor and a decision maker's purported knowledge of Johnson's age.

Judge Kermit E. Bye wrote the majority opinion, joined by Judges William J. Riley, Roger L. Wollman, James B. Loken, Diana E. Murphy, Steven M. Colloton, Raymond W. Gruender, Duane Benton and Bobby E. Shepherd.

Partially dissenting, Judge Lavenski R. Smith, along with Judges Michael J. Melloy and Jane Kelly, argued that the evidentiary record as a whole is sufficient to deny summary judgment to Securitas.

Majority Finds No Evidence of Pretext

According to the court, Securitas presented legitimate, nondiscriminatory reasons for Johnson's firing based on violations of company policy.

Specifically, Johnson was involved in a work-related vehicle accident that he allegedly didn't immediately report and he purportedly left his post one hour before the end of his shift.

Although Johnson presented seven arguments to support his position that Securitas's reasons were pretextual, the Eighth Circuit majority rejected them all.

For instance, the court acknowledged that evidence of supervisor Robert Hesse's “Superman” comments, his comparison of Johnson to Hesse's 86-year-old father who no longer worked, and his encouraging Johnson to retire could raise a triable question as to whether age was a factor in Johnson's termination.

However, the court said the evidence is insufficient at the pretext stage because Hesse was only one of three officials who decided to fire Johnson because he had committed terminable offenses.

Johnson's evidence that two of the three decision makers actually knew about his age also fails to create a material factual dispute regarding pretext, the court said.

Additionally, the Eighth Circuit said Johnson failed to rebut Securitas's good-faith belief—based on various internal documents and time sheets—that Johnson left his shift early; didn't identify any younger employees who received more favorable treatment despite engaging in the same misconduct; didn't show that Securitas gave shifting rationales for his termination; and failed to show that a human resources manager intentionally destroyed notes that would have been favorable to his case.

Disagreeing with a 2-1 panel decision, the full Eighth Circuit 9-3 rejected the fired security guard's arguments regarding pretext, including evidence of age-related comments by a supervisor and a decision maker's purported knowledge of the guard's age.

Moreover, the court said, the record as a whole doesn't save Johnson's claim from dismissal because it “is merely an amalgamation of the arguments we have already found unavailing.”

Dissent: Record as Whole Supports Trial

In partial dissent, Smith contended that evidence of Hesse's “repeated, derogatory comments” about Johnson's age directly to Johnson and to other decision makers could lead a reasonable fact finder to conclude that Johnson was fired because of his age.

In addition, Smith said, the issue of whether all three decision makers knew about Johnson's age at the time of his discharge is a factual determination concerning witness credibility that a jury, and not a judge, must make.

“The majority compartmentalizes each of Johnson's arguments and then summarily dismisses Johnson's contention that the record as a whole contains questions of material fact sufficient for him to survive Securitas's summary judgment motion,” Smith said. “In doing so, the majority has missed the proverbial forest for the trees.”

Kaplan Associates represented Johnson. Ogletree Deakins represented Securitas.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Carlyn_Johnson_v_Securitas_Security_Services_Docket_No_1202129_8t/1.