I got fired at age 60. Must have been my age.

Then again, it may have been that "FU" text I sent the boss.

You can't make this stuff up.

For those of you who think I'm too hard on employers, today is your day. There was an excellent pro-employer decision recently from the Iowa Supreme Court. I have a lot to say about it, so I'll jump right in.

"F*** You," boss!

David Feeback was a 60-year-old supervisor at a Swift Pork Company plant in Marshalltown, Iowa. He was only two years away from being eligible to retire. He'd received raises and good performance reviews, but he started butting heads with his bosses about seven months before his termination.


Among other things, Mr. Feeback and the other supervisors were responsible for seeing that all of their employees got their annual safety training. As of December 31 -- that would be New Year's Eve -- Mr. Feeback's employees still hadn't had their training, so Mr. Feeback scheduled it for that afternoon. The company usually gave employees half the day off on New Year's Eve, but instead of drinking champagne and watching the ball drop, Mr. Feeback's employees would have been slogging through the annual safety training that should have taken place on an earlier -- and less rockin' -- day of the year.

The general manager at the plant overruled Mr. Feeback's decision to have the safety training on New Year's Eve, and sent the employees home. For which, I am sure, the employees were grateful. Then the GM called Mr. Feeback and Mr. Feeback's immediate supervisor into his office, and dressed Mr. Feeback down. When Mr. Feeback tried to argue, the general manager told him that he should listen "with his mouth shut and his arms open." The GM also said that one of Mr. Feeback's employees reported that Mr. Feeback had called the GM the worst manager he'd ever had.

Mr. Feeback kept his mouth shut, as instructed, and left the meeting. Whether his arms were open was not reported by the Court. That evening, the GM received a text from Mr. Feeback saying, "F*** You!" Except the real text did not have asterisks, and the "F" word was fully spelled out in all caps. Then the GM received a second text from Mr. Feeback saying, "Believe who and what you want."

On New Year's morning, Mr. Feeback was called in by the Human Resources Director to explain himself. He said he meant to send the "FU!" text to a friend rather than to the GM. When asked why he didn't call back the text or try to explain his "mistake," he said that he didn't know how to call back a text and that he hadn't seen the GM yet that morning. Mr. Feeback was promptly suspended pending further investigation.

A few days later, the company decided to terminate Mr. Feeback's employment. Mr. Feeback was replaced by a 50-year-old.


The company's investigation

Did the HR Director conduct an expensive, time-consuming investigation? It doesn't sound like it. But he conducted a smart investigation. Here's how he determined that Mr. Feeback probably hadn't made an innocent mistake in sending those texts to his GM:

  • Before New Year's Eve, Mr. Feeback hadn't sent a text to the GM since September 15, making it very unlikely that any accidental text sent on NYE would have gone to the GM.
  • In addition to not calling back the "FU!" text, Mr. Feeback didn't follow up with a text to the GM explaining and begging forgiveness for his "mistake."
  • In addition to not texting an apology to the GM, Mr. Feeback did not call the GM or make any other attempt to explain or apologize.
  • In addition to not apologizing somehow or other to his GM, Mr. Feeback never sent the "FU!" text to the friend for whom it was allegedly intended, as one would expect if a text were inadvertently sent to the wrong person.
  • In addition, Mr. Feeback could not explain what the "Believe who and what you want" text would have meant to anyone other than the GM, who had brought up the allegation that Mr. Feeback had bad-mouthed the GM to another employee.

What more did they need? I'd say nothing. You don't have to find an employee "guilty beyond a reasonable doubt" to fire. If an employer honestly and reasonably believes (even mistakenly) that an employee committed grounds for termination, then that's almost always a defense to a discrimination claim.

Court tosses age discrimination claim

Mr. Feeback sued Swift, his immediate supervisor, and the GM for age discrimination, wrongful discharge, and harassment. A trial court granted summary judgment to the defendants on all claims. The Iowa Court of Appeals agreed with the lower court on the wrongful discharge and harassment claims, but reversed summary judgment on the age discrimination claim. According to the Court of Appeals, a jury would have to decide whether Mr. Feeback sent the "FU!" by mistake. (In addition, Mr. Feeback had evidence that everybody cussed a lot at work and that a lot of older workers had been terminated since 1994.)

But the state Supreme Court reversed the Court of Appeals, which resulted in a total win for Swift and the managers. (Even though the age discrimination claim was brought under state law, the Court applied the same principles that would apply under the federal Age Discrimination in Employment Act.)

Regarding the quick investigation, the Supreme Court said, "[The Swift HR Director] did not have much to investigate," discussing the lack of apology or explanation after the "mistake," and the fact that the texts were not re-sent to any "intended" recipient. As the Court noted,

"The question is not whether Feeback sent the texts accidentally; the question is whether [the HR Director] had a good-faith honest belief that Feeback was insubordinate. He did."


Mr. Feeback also argued that his termination for saying "FU!" was bogus because cussing was common at the plant. (In fact, some time before the New Year's Eve incident, the GM had allegedly called Mr. Feeback out of the men's room and told him to stop "f***ing around.") Even so, the Court said,

"Nobody besides Feeback texted 'F*** You!' to the plant manager after a negative performance review. . . . There is a big difference between swearing around the boss and texting 'F*** You!' after he chewed you out. Feeback identified no other Swift employee who committed an offense of comparable seriousness without being terminated."

(Asterisks added. The Court used the complete, capitalized "F" word both times.)

Finally, the Court found that Mr. Feeback's evidence of older employees who were terminated by Swift from 1994 onward was not enough for Mr. Feeback to get to a jury on his age discrimination claim. According to the Court, Mr. Feeback's only real evidence was that the others were terminated when they were older. He apparently had no evidence regarding why they were terminated. And Mr. Feeback didn't offer any expert testimony indicating that the terminations of older workers were statistically significant. On top of that, Swift had evidence that, at the time of Mr. Feeback's termination, it had roughly 100 employees who were 60 or older.

P.S. One more point before I go -- my law partner Ken Carlson asks a great question: "What would the outcome of this case have been under the National Labor Relations Act if Mr. Feeback had not been a supervisor?" I believe the outcome would have been the same. Section 7 of the NLRA prohibits employers from taking action against employees for engaging in "protected concerted activity," which is group action or preparation for group action relating to terms and conditions of employment. (Section 7 doesn't apply to "supervisors" as defined in the law.) In this case, the "FU!" pertained to terms and conditions of employment, but I didn't see any indication that Mr. Feeback was acting as part of a group or preparing for any type of group action. He seemed to be acting only on behalf of himself. Labor lawyers, please feel free to let us know if you disagree. 

Image credits: From flickr, Creative Commons license. Downtown Marshalltown by David Wilson, the "Big Pin" by Carl Wykoff, Mayor Pete by Pete For America.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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