Does a Supervisor’s Use of the Words “Historically” and “Old School” Prove Age Discrimination?

No – the Eighth Circuit Court of Appeals recently rejected a plaintiff’s argument that his supervisor’s use of the terms “historically” and “old school” constituted direct evidence of age discrimination.

In Wagner v. Gallup, Inc., the plaintiff sued for age discrimination after his employer terminated his employment. No. 14-2746 (8th Cir. June 12, 2015). In support of his claims, the plaintiff cited a recorded phone call with his younger supervisor shortly before his termination. During the conversation, the supervisor questioned how the company could push the plaintiff to think about his work in a different way than he had done “historically but kind of pushing forward a more creative thought process for our clients.” The supervisor also encouraged the plaintiff to consider whether references he made while working with clients to a previous book he published were truly relevant to the client’s business problems or whether it might “feel like old school.”

When analyzing the supervisor’s comments, the court held that the words “were not uttered in a vacuum but rather must be placed in context.” In context, the court explained that the supervisor used the word “historically” as a temporal reference to things that had been done in the past. The court also explained that the supervisor used the words “old school” to refer to ideas that may not be relevant to a particular situation, not as a reference to the plaintiff. Accordingly, the court held that the comments did not establish direct evidence of age discrimination.

Takeaway: Sometimes plaintiffs attempt to use isolated words out of context to try to establish their claims. The Wagner case is good for employers because it supports the proposition that courts should analyze comments in context, not in isolation.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on June 24, 2015, in Discrimination and Harassment and tagged . Bookmark the permalink. Comments Off on Does a Supervisor’s Use of the Words “Historically” and “Old School” Prove Age Discrimination?.

Comments are closed.