Age Discrimination & Retaliation: Employee Terminated After Complaints About Supervisor’s Discriminatory Comments Can Proceed with Age & Retaliation Claims

Employees who are terminated after they complain about discriminatory comments by a supervisor which are based on age and race bias are protected by discrimination laws. In Kargbo v. Philadelphia Corporation for Aging, 2014 U.S. Dist. LEXIS 56253 (E. D. Pa. April 22, 2014)(Baylson, J.), the Plaintiff employee, a 52-year-old black male from West Africa, was a service coordinator providing social and health care benefits to senior citizens who was fluent in four languages including Russian. After 5 weeks of training Plaintiff began working under his supervisor who said both at a staff meeting and privately to Plaintiff, “I don’t believe you are the right man for this job. You are 52 years old. This job is normally for young college graduates.” Also, the supervisor commented to clients on three occasions that “she does not believe a black man from West Africa (referring to Plaintiff) can speak Russian so fluently.” Plaintiff then reported and met with his supervisor’s manager and the Director of Human Resources to complain about the comments. After the Plaintiff employee made the complaints, the supervisor started treating him poorly and subsequently documented a number of performance problems purportedly related to Plaintiff’s ability to use the computer systems and to input client information correctly. Within a few months the supervisor submitted a discipline form recommending termination.

The Court found that the Plaintiff could proceed to trial with his claim for age discrimination. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination in employment against any person over age forty. In order to establish a prima facie case of discrimination, a plaintiff must demonstrate: (1) he is older than 40; (2) he applied for and was qualified for the position; (3) he suffered an adverse action; and (4) he was replaced by a sufficiently younger person to support the inference of age discrimination. If the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action which is satisfied by introducing evidence, which, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. If the defendant is able to come forward with a legitimate, non-discriminatory reason for its action, the plaintiff can defeat a motion for summary judgment by providing evidence from which a fact finder could reasonably either (1) disbelieve the defendant’s articulated legitimate reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the defendant’s action.

In Kargbo, the Plaintiff met the prima facie case burden by showing that he is older than forty, he was qualified for the job because he was hired and initially received a satisfactory job performance review, and thereafter he was terminated, which is an adverse action. Further, the court held that since Plaintiff produced evidence he was replaced by a person twenty-four years younger than him; he produced sufficient evidence that he was replaced by someone young enough to support an inference of age discrimination. The employer pointed to several legitimate reasons it terminated Plaintiff for poor performance, specifically for his inability to learn and use computer software essential to performing the functions of his job, problems making services requests and complaints from clients and a service provider. Therefore, the burden shifted back to Plaintiff to show these reasons were mere pretext, and his age is the real reason for the termination. The Plaintiff pointed to the supervisor’s repeated comments regarding Plaintiff’s age to show a discriminatory reason for his termination. Viewing the evidence in the light most favorable to Plaintiff, the court held that the supervisors statements are not stray remarks and instead were comments by a decision maker that directly commented on Plaintiff’s ability to do his job, which can be direct evidence of age-related animus, supporting Plaintiff’s showing of pretext.

In Kargbo the Court also found that Plaintiff could ales proceed with his claims for retaliation under the ADEA and Title VII, alleging he was terminated because he complained about discriminatory conduct. To establish a prima facie case of retaliation a plaintiff must show (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action. If a prima facie case is established the burden of production shifts to the defendant to show a legitimate nonretaliatory reason for the adverse action. The plaintiff must then show both that the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.

A protected activity can be either participation in certain discrimination proceedings or opposition to discrimination. Protected participation occurs when the plaintiff has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding. Protected opposition is conduct opposing any practice in violation of discrimination laws such as a complaint to a supervisor or manager. A plaintiff does not need to show the conduct complained of was in fact discriminatory, but only that he had a good faith, reasonable belief that a violation existed.

In Kargbo, the supervisor’s comments were explicitly directed at Plaintiff and referred to his ability to do his job. Thus, the court found that a reasonable trier of fact could find it was reasonable to believe the statements violated the ADEA and were protected activity because the comments specifically mentioned Plaintiff’s age, that he was too old, and that he could not do the job because of his age. In addition, the supervisor’s comments about Plaintiff’s race were repeated several times and it was not unreasonable to believe that a supervisor should not be commenting on an employee’s race to clients in the workplace. Accordingly, the court also found sufficient evidence to show Plaintiff had a reasonable, good faith belief that the comments amounted to a hostile work environment, and these complaints were also a protected activity.

An adverse action is any conduct that is materially adverse and would have dissuaded a reasonable worker from making or supporting a charge of discrimination. Since Plaintiff testified to abusive conduct following his complaints, and he was terminated, there was clearly an adverse action. As to a causal connection a plaintiff can show causation by showing (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link or (3) from the evidence gleaned from the record as a whole the trier of the fact should infer causation. Cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close.

In Kargbo, the Court held that because the Plaintiff made five complaints about the supervisor’s discriminatory comments and treatment over a three-month period, including two or three weeks before he was terminated, the timeframe supported an unusually suggestive temporal proximity and that the evidence established a pattern of antagonism following his complaints. Therefore, a jury could find that the supervisor’s documentation of performance problems and client complaints, the escalation of that documentation in the two weeks before his termination, and the conduct towards Plaintiff after his protected activity shows a causal connection between the complaints and Plaintiff’s termination.

The court also held that a reasonable jury could conclude that the alleged performance problems were a pretext for retaliation for his complaints because there were no issues about Plaintiffs’ computer performance problems until shortly after Plaintiff filed complaints , a poor evaluation came after the complaints and it could possibly be inferred that the supervisor’s emails to Plaintiff with instructions on using the various computer programs were not to help him but were to make him look incompetent to create a paper trail of nonexistent performance problems.

In Kargbo, the court also found that the Plaintiff could proceed to trial on a hostile work environment claim but the evidence was not sufficient to proceed on a Title VII claim for wrongful termination.

For more information on age discrimination, retaliation and Abramson Employment Law see,


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Filed under Age Discrimination, Employment Law, Race Discrimination, Retaliation

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