Virginia Federal Court Dismisses Age Discrimination Suit Where Plaintiff Accused of Violent Behavior

A 69-year-old plaintiff who sued his former employer for allegedly violating the Age Discrimination in Employment Act (“ADEA”) learned a harsh lesson recently when the District Court awarded summary judgment to the employer: in discrimination cases, sometimes what actually happened isn’t nearly as important as what the employer believed to have happened.

In Bandy v. Advance Auto Parts, Inc., Civil Action No. 7:11-cv-00365 (W.D. Va. Nov. 15, 2012), Roger Dean Bandy (“Bandy”) sued his former employer, Advance Auto Parts, Inc. (“Advance”) , for allegedly violating the ADEA when it terminated him in October 2010 after more than 47 years of service.  At the time of his firing, Bandy was 69 years old.  Advance denied that Bandy’s age played any role in his termination; instead, Advance claimed that Bandy was terminated because he violated Advance’s policy prohibiting violence in the workplace.

On October 13, 2010, Bandy and a co-worker, John King (“King”), had a “heated exchange” while at work.  According to witnesses, Bandy and King nearly came to blows during the altercation and made nearby employees very uncomfortable before someone eventually stepped in and separated the two men.

Advance has a “zero tolerance” policy with respect to violence or threats of violence in the workplace.  According the clear language of the policy, “[a]ny threats, incidents of violence, or intimidation of any nature whatsoever . . . will result in immediate termination.”  According to Advance, both Bandy and King’s conduct during the incident constituted a violation of this policy, and the HR Director, Michael Russell (“Russell”), decided to terminate both men as a result.

Prior to the incident involving King, Bandy had always been a good worker who received excellent performance evaluations.  Bandy felt that Advance chose to use the October 13th incident as an excuse to terminate him because of his age.  He contended that his conduct during the incident did not constitute a violation of the policy, and so the policy could not be the real reason for his termination.

The ADEA is violated if an employer discharges any individual “because of such individual’s age.”  To establish an ADEA claim, a plaintiff must prove “that age was the ‘but-for’ cause of the challenged employer decision.”  In its motion for summary judgment, Advance argued that Bandy’s claims should be dismissed because no reasonable fact-finder could conclude that Bandy’s age was the real reason for his termination.  Advance pointed out that Russell, the person who actually made the termination decision, did not know Bandy and did not know his age.

Like most defendants in such discrimination cases, Advance presented a “legitimate, nondiscriminatory reason” for firing Bandy: namely, that Russell believed that Bandy had violated Advance’s “zero tolerance” policy.  Once it did so, the plaintiff (Bandy) was given the chance to prove that the employer’s explanation was merely a pretext for discrimination.  As Judge James Turk explained in his memorandum opinion, Bandy failed to do so.

First, the undisputed evidence had shown that Advance consistently applied the policy, firing any employee that violated the policy, regardless of their age.  Bandy was not able to point to a single employee who had violated the policy and had not been terminated.

Second (and maybe more importantly), Bandy did not dispute the fact that Russell – who made the decision to terminate Bandy – had no personal knowledge regarding his age.  The Court considered this fact to be highly significant, since age could not have been the “but-for” cause of Bandy’s termination if Russell did not know who Bandy was (and therefore did not know his age) when he decided to fire him.

In his opposition to Advance’s motion, Bandy argued that there were facts in dispute regarding whether he had violated the anti-violence policy, and/or whether his role in the incident with King rose to the same level of threat or intimidation as other employees who’d been terminated by Advance for allegedly violating the same policy.  But as the Court pointed out in its decision, the question of whether or not Bandy actually violated the policy is irrelevant; the important question is whether Russell honestly believed that Bandy had violated the policy when he made the decision to fire him!

Bandy never offered any evidence to suggest that Russell’s real reason for terminating him was his age.  As such, he failed to show that Advance’s explanation that he was terminated for violating the policy was merely a pretext for age discrimination.  Likewise, he offered insufficient evidence from which a “reasonable factfinder” could have possibly concluded that Bandy’s age was the “but for” cause of his termination.  The Court therefore granted Advance’s motion for summary judgment.

As this case shows, employers should thoroughly investigate employee conduct before taking disciplinary action and document the results of these investigations.  Courts will defer to employer’s legitimate good faith beliefs as to what transpired, even if the employee views the fact differently.