Employment & Labor Insider

Here's a lesson: Don't call your employee an "old fart," especially if you think you may need to fire him someday.

And don't call his co-workers "old farts" right before you fire the co-workers.

And don't give your "old fart," who has only a first-level warning on his record, three or four "progressive" warnings on the day that you fire him.

And don't try to invoke "employment at will!" to justify any of the above.

Every now and then a case comes along that illustrates so well all the things that employers should not do*. The case of Goudeau v. National Oilwell Varco is just such a case. So let's do a "post-mortem" on the employer's motion for summary judgment, which was originally granted but was reversed last week by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit**, meaning that the plaintiff's age discrimination claims will go to a jury.

*According to the court's decision, the employer vigorously disputes the plaintiff's allegations. But at the summary judgment stage, the court had to assume that the plaintiff's version of any disputed facts was the correct one.

**The Fifth Circuit hears appeals from federal courts in Louisiana, Mississippi, and Texas. This case originated in Texas.

Maurice Goudeau had worked for NOV's predecessor since 1993, and was promoted at some point to maintenance supervisor. In 2008, NOV acquired his company, and he continued to do just fine. But in September 2010, when he was in his late 50s, he began reporting to a new supervisor.

(Dum-da-dum-dum!)

Screw-up #1: "Old farts"

The court decision doesn't tell what the new boss's age was (which makes me think he may have been older, too), but at some point he allegedly went out for a smoke with Mr. Goudeau and said, "There sure are a lot of old farts around here." He also asked Mr. Goudeau about two other older co-workers, asking how old they were and how long they'd been with the company. He allegedly told Mr. Goudeau that he planned to fire both of the co-workers. (Both were, in fact, eventually fired.)

On other occasions, the same supervisor allegedly told Mr. Goudeau that he wore "old man clothes," and he called Mr. Goudeau an "old fart."

Assuming the supervisor really was the same age as Mr. Goudeau, would that have been a defense for NOV? Not necessarily. Sometimes the worst offenders in age discrimination cases are supervisors who are in the protected age group. They may still believe that "new blood" is needed in the company (to replace others' blood, just not their own!). Sometimes, they are ok with older employees at higher levels (including their own) but believe that anyone who is still doing a lower-level job after 40, 50, or 60 must be incompetent. And they also believe they can say stupid things like "old fart" because they're older themselves. I don't think I've ever heard a 35-year-old say "old fart," but I can easily picture a 55-year-old saying it, thinking it's humorous self-deprecation. (Is that a discriminatory stereotype on my part?)

Screw-up #2: Progressive warning pile-on

In January 2011, this supervisor gave Mr. Goudeau the first disciplinary write-up he had ever received, and he gave Mr. Goudeau a lousy performance review in March 2011. Then, on a single day in August 2011, the supervisor gave Mr. Goudeau a "second warning" for not getting some machines fixed on June 26, a "third warning" for failing to inspect fire extinguishers on July 12, and a "final warning" for failing to begin a project on July 14. (It's not clear whether Mr. Goudeau received it, but the court said there was also a "second final warning" in his file for failing to perform a task on August 9.) Mr. Goudeau was fired on August 11, 2011, for poor performance and insubordination.

Again, the employer disputes that it all went down in precisely this manner, but the court pointed out that Mr. Goudeau had not signed any of the warnings except the one that he received in January. This was at least some evidence that his story about being issued all of the remaining warnings at once might have been true.

The court said that the alleged age-related comments, coupled with the alleged issuance of three or four "progressive" warnings on the day of termination, meant that a reasonable jury might find that the performance/insubordination issues were bogus and that Mr. Goudeau was really terminated because he was an "old fart" because of his age.

It's hard to argue with that.

Screw-up #3: "Employment at will" to the rescue - not. 

If you read this blog very often, you know that I caution employers not to count on the "employment at will" defense because there are so many exceptions to the doctrine and it gives employers a false sense of security. ("We can fire you for any reason or no reason!" "Uh, no you can't.") Well, NOV apparently argued that the three-four "progressive" warnings allegedly issued on a single day were ok because Mr. Goudeau was an employee at will and therefore had no legal right to progressive discipline anyway.

Nope, the court said - because even if the employment relationship is "at will," the employer still generally has to follow its progressive discipline policy if it chooses to have one. Failure to follow an existing progressive discipline policy can be evidence of an illegal or discriminatory motive.

(In other words, if you have a progressive discipline policy and don't follow it, you will have some explaining to do.)

. . . and in conclusion . . .

To recap: (1) Don't call your employees "old farts"; (2) Don't save up all your discipline to administer on the day of termination; and (3) Don't count on the "employment at will" defense to save you if you do #1 and #2. And, as always, don't necessarily believe that this is what really happened until NOV has a chance to present its side of the story.

OK, now we can sew that dead guy back up.