Termination of 76 Year Old Told He “Needed to Hang Up His Superman Cape” Found Wrongful

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super-hero-red-cape-mdIt’s a bird! It’s a plane! No, it’s … a 76 year old security guard …

Background

“Superman” Carylyn Johnson (more about that later) was a security guard for Securitas Security Services.  His duties included providing on-site security guard services at various locations.  Hired at the spry age of 70, Johnson’s employment record was virtually unblemished from when he was hired in 2004 until he was terminated in 2009 – he had only received one oral warning for sleeping on the job.

The Termination

When he was making his rounds at approximately 5:30 a.m. in the morning, and apparently in the 20th hour of his shift, Mr. Johnson collided with a parked truck.  For reasons discussed below, he was soon after terminated.

This opinion, issued just two days ago from the 8th Circuit Court of Appeals, details the circumstances Mr. Johnson’s Age Discrimination in Employment Act (ADEA) and Missouri law claim that Securitas Security Services fired him because of his age.

Johnson cited evidence that, prior to his termination, a Securitas supervisor had;

  1. called him “too old to be working” (tip – don’t say that);
  2. told him to “hang up his superman cape” and that he needed to retire (tip – again, not a good idea); and
  3. compared 76 year old Johnson with the supervisor’s 86 year-old father, who was no longer working (again – not a good idea).

After Johnson hit the truck at 5:30 in the morning, he tried to call his supervisor and claimed he couldn’t reach him because of bad cell phone reception.  He later got in touch with his supervisor at 7:00 a.m. and headed home.  He participated in a subsequent investigation, gave a blood test, and spoke with the human resources director.  Three days later he was terminated.

Johnson was terminated three days after the accident.  The reasons given were violation of company policy — by failing to follow protocol for reporting an accident — and by leaving his shift one hour early at 7:00 a.m. instead of 8:00 a.m.

After the trial court disposed of Johnson’s case by granting the employer summary judgment (pretrial dismissal), the Court of Appeals reversed the trial court’s findings, saying that Johnson’s case should proceed to a jury.  Ouch.

Why the Employer Got Nailed

Here’s why:

  1. The supervisor’s comments.  While probably made in jest, comments like these are just a breeding ground of uncertainty when they’re later tied to a protected class status, which gets employment claims like these in front of juries.  Bad for employers.
  2. Evidence that two other employees had been in work-related accidents and were not terminated made Johnson’s discipline look harsher than that of younger employees.
  3. A legitimate dispute and question over whether his shift actually ended at 8:00 a.m., or whether it was 7:00 a.m., as he claimed.

Final thoughts:

Good, proactive discipline and termination decisions must be made within a context.  Within that context, you should examine how discipline and/or termination of other employees for similar infractions are handled.

In conjunction with that, review the basis for the discipline.  Does the employee/former employee have any argument that other employees were, or would have been, treated differently? If so, assess the risk.  Make your decisions from a position of strength.

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