Diversity & Inclusion, HR Management & Compliance

Grudge Match: Long-Simmering Resentment Stokes Age Bias, Retaliation Claims

People can hold grudges for a long time. But when a manager is holding a grudge against an employee, how long can that grudge continue? Well, in one case, a manager held a grudge against an employee for 11 years. The case comes to us out of Utah, where a former sheriff’s department firearms instructor sued the former sheriff for retaliation and age discrimination. Here is the story of what the sheriff’s department did right, despite the bad blood between the two men.

Retaliation and Age Discrimination

To set the scene, employees can file a retaliation claim against their employers when they believe an employer took adverse action against them based on protected conduct, such as making a complaint of discrimination. For federal government employees, the First Amendment protects certain free speech rights. This means that a government employer may not retaliate against the free speaking employee in a manner that would likely deter a reasonable person from engaging in similar protected speech. Political speech, including expressing a preference for (or against) a candidate for public office, is protected speech for government employees.

The other law that came into play in this case is the Age Discrimination in Employment Act (ADEA), which prohibits workplace discrimination against and harassment of employees aged 40 and over based on age.

Politically Motivated Grudge

The Utah case, which began in 2006, involved a grudge between the sheriff and the firearms instructor. The sheriff ran for elected office, but the firearms instructor didn’t support him. He won his first election, and the two elections that followed, never with the enthusiastic support of his employee. The lack of support irked the sheriff, and indeed, during the litigation, three witnesses testified that he had long wanted to remove the instructor. This desire to remove the instructor dated all the way back to his initial campaign.

Rather than fire the instructor, the sheriff simply eliminated the position of “firearms instructor.” The now-former instructor was told he would be reassigned, subject to a pay decrease, and another officer (a man four years younger) would be put in charge of the shooting range under a different job title. Immediately after making these changes, the sheriff left office.

Political Retaliation?

So, did the sheriff retaliate against the firearms instructor because of the instructor’s lack of political support? The court said no.

The court recognized, however, that the firearms instructor provided direct evidence of discrimination. He found witnesses who told the court his demotion was explicitly “politically motivated” and a “last-ditch effort to get even.” But despite the clear evidence of discrimination, the court reminded him that the relevant issue was whether he would have been demoted if the sheriff didn’t hold a grudge.

Why was the answer no? After the instructor claimed retaliation and age discrimination, the new sheriff had her department conduct two independent investigations into his management of the shooting range. Both investigations revealed a pattern of deficient training and management—neutral reasons supporting a change in shooting range management. She concluded the firearms instructor routinely gave preferential treatment to some officers over others, creating an atmosphere of division. She told the court, “I need someone that can bring people together and treat people fairly.”

Moreover, the firearms instructor provided no evidence opposing the allegations of preferential treatment and deficient training. Therefore, the court concluded that he “would have been removed” even if there had been no “improper motivation.”

Age Discrimination?

At the time of his demotion, the firearms instructor was 59. He was replaced by another man, aged 55. He was within the class of people protected by the ADEA, but so was his replacement. The court determined that he didn’t suffer discrimination based on his age.

The court stated that an age difference of under 10 years is generally not enough to prove an age discrimination claim. Its determination was bolstered by the fact that his replacement was also in the class protected by the ADEA. Therefore, his age at the time of the demotion alone was insufficient to find the sheriff’s department engaged in age discrimination. And he had no other evidence of age-based discrimination, and so the court dismissed his claim of an ADEA violation.

Lessons Learned

People in a workplace don’t always get along, but companies can put safeguards in place to ensure fair, consistent, and legally compliant treatment. In addition, this can help you avoid actions based on personal vendettas in the workplace.

Here, the court found there was direct evidence of retaliatory behavior by the former sheriff against the firearms instructor. The new sheriff, however, had the foresight to conduct two independent investigations, allowing her to adequately show there were neutral reasons for his removal, regardless of the former sheriff’s grudge.

Finally, the sheriff replaced the firearms instructor with a qualified candidate who happened to be close in age to the instructor, defeating his ADEA claim. In this case, the employer’s procedures to ensure that employment decisions were valid and supported by legitimate reasons (both the former instructor’s removal and his replacement by a qualified candidate) were what saved the day.

Maria Drouhard is an attorney working with Foulston Siefkin LLP’s Northeast Employment and Litigation Team in Overland Park, Kansas. Maria can be reached directly at mdrouhard@foulston.com

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