On June 14, 2013, the United States Court of Appeals for the Eighth Circuit ruled that a district court erred in granting summary judgment to an employer on an employee’s age discrimination claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, as the employer’s legitimate reasons offered for the termination of its employee were tinged with possible discriminatory pretext. In Ridout v. JBS USA, LLC, No. 12-3220 (June 14, 2013), the employer terminated a pork processing plant employee after he was alleged to have “raised his voice” following a machinery malfunction at work. The employee, aged sixty-two at the time of his termination, was replaced with two employees aged in their thirties. The Eighth Circuit ruled that the employee had satisfied his burden of showing that the employer’s proffered reason for firing him was pretextual for age discrimination, and thus it remanded the case for a trial in the district court. The case is significant for employers because it illustrates of the shortcomings of certain proffered, legitimate reasons for an adverse employment action in the face of an age discrimination claim.
The plaintiff, Lyle Ridout, worked for the defendant pork processing company, JBS USA, LLC (JBS), for over forty years, rising through the ranks and eventually becoming a superintendent of the rendering department. Ridout was supervised by plant engineer Cyrus Thill, plant manager Todd Carl, and general manager Troy Mulgrew. Ridout oversaw the general functioning of his department’s machinery, including an instrument known as the prehogor. The prehogor was used to grind scraps and bones of pork byproduct in order to create a material known as “crackling.” As the prehogor was an essential part of the production line at JBS and equipment downtime could back up the overall process significantly, repairs of the instrument were usually scheduled during overnight shift breaks because the prehogor was operated almost continuously throughout the day and night.
On May 13, 2010, the prehogor broke down entirely during the middle of a day shift. The shift supervisor was forced to shut down production for several hours so that repairs to the instrument could be made immediately. Although the prehogor was restored to operation by the end of the next shift, a significant backlog of product had piled up during the downtime. The next day, plant engineer Thill, plant manager Carl, and general manager Mulgrew visited the rendering department. The backlog of product had not yet been cleared. Carl located Ridout in his office, and then all four men went over to the prehogor to discuss its failure the previous day. Ridout became visibly upset and raised his voice during their discussion, and he complained that management wanted to “point[ ] fingers” rather than allow him to spend his time fixing the problem. Mulgrew alleged that he told Ridout to “[t]one it down” or else he would be sent home. Ridout testified in his deposition that Mulgrew told him to “go home” when he raised his voice so he left work.
Ridout admitted that at the time of the incident, he was frustrated that his supervisors were interfering with his repair efforts, but he maintained that he never behaved in an aggressive manner. He admitted that he raised his voice because the conversation took place directly next to a large piece of equipment, and employees in that area had to speak loudly to be heard over the noise. Ridout also pointed out that he had experienced considerable hearing loss due to working in the JBS factory for over forty years and that his hearing loss caused him to speak loudly. A few days following the incident, Ridout was suspended without pay.
In a later meeting with human resources, Ridout expressed contrition for his statements to Mulgrew during their confrontation. Ridout also mentioned to the human resources employee that two other older employees had recently been terminated ostensibly for safety violations, but it was more likely due to their age. Ridout’s meeting did not focus on his overall historical employment history, which had been strong and consistent. After the meeting, the management at JBS decided to terminate Ridout. Mulgrew replaced Ridout with Chad Richett, who was between thirty-five and thirty-eight years old. Richett was subsequently demoted by Mulgrew a year and a half later due to inadequate performance. Mulgrew then hired John Holden, age thirty-three, as the new rendering superintendent even though Holden had been terminated by JBS five years earlier for making a mock Ku Klux Klan hood out of industrial materials and displaying it to a black employee.
Ridout filed a lawsuit alleging age discrimination in violation of the ADEA and state law. JBS moved for summary judgment, and the district court concluded that Ridout had made out a prima facia case of age discrimination. It then proceeded to analyze the two nondiscriminatory reasons JBS gave for Ridout's termination: that he had raised his voice to his supervisors and that his performance had declined. The district court concluded that Ridout had not demonstrated that these reasons were a pretext for age discrimination and granted summary judgment for JBS.
On appeal, the Eighth Circuit first noted that both parties had satisfied their initial burdens under the familiar McDonnell Douglas burden-shifting framework. Ridout met his burden of showing a prima facie case of age discrimination, and JBS sufficiently responded with legitimate non-discriminatory reasons for terminating Ridout. The only question left on appeal was whether Ridout made a sufficient showing that JBS's proffered reasons were a mere pretext for age discrimination to avoid summary judgment.
The Eighth Circuit ruled that JBS’s first proffered reason for Ridout’s termination – declining performance – was not supported by the evidence. To the contrary, Ridout presented evidence that the company considered his performance satisfactory until he was suspended without pay. Relying on Erickson v. Farmland Indus., Inc., 271 F.3d 718 (8th Cir.2001), the court found that a strong showing that Ridout was meeting his employer's reasonable expectations at the time of his termination created a factual issue as to pretext for JBS’s claims that the Ridout was terminated for poor or declining performance.
The Eight Circuit found that JBS’s other proffered reason for firing Ridout – insubordination – exposed itself to a potential finding of discriminatory pretext. Noting that the employee may demonstrate pretext by showing that “it was not the employer's policy or practice to respond to such problems in the way it responded in the plaintiff's case,” See Erickson, 271 F.3d at 727, the Eighth Circuit noted examples in which JBS had acted contrary to its normal practices. Ridout presented evidence that it was common practice for employees to raise their voices in discussion with supervisors near loud machinery, and that often arguments broke out between employees and supervisors for which employees were never disciplined. The Eighth Circuit found that evidence that Ridout had offered of younger employees being subject to lesser penalties than termination was sufficient for a trier of fact to infer discriminatory pretext. The court also held that Ridout could rely on evidence of favorable treatment of the two replacement employees because they were sufficient comparators. The court underscored that creating a mock Ku Klux Klan hood and displaying it to an African American employee was at the very least “comparabl[y] serious[ ]” to raising one's voice during an argument on a loud factory floor, yet the Ku Klux Klan hood-toting employee was given preferential treatment. See Lynn v. Deaconess Med. Ctr.-W. Campus, 160 F.3d 484, 487 (8th Cir. 1998). Taken altogether, the court held that Ridout’s evidence was consistent with a reasonable inference of age discrimination, and thus it remanded the case for the district court for further proceedings.
The court’s decision in Ridout is a valuable lesson for employers in producing evidence in support of a legitimate non-discriminatory reason for termination of an employee. JBS cited a history of poor work performance as one of the reasons for Ridout’s termination, however the evaluative performance documents that it maintained clearly showed that Ridout’s performance was steady and consistent. JBS argued that Ridout had been resistant to proposed changes in the rendering department, but yet it offered no specific examples and no contemporaneous evidence to provide substance to their assertion. For their proffered reason of insubordination, however, JBS’s maintenance of records proved to be fatal as it retained a record of terminating and rehiring a younger employee even after he committed blatant acts of racism. Documenting and maintaining records of employee history can always be of great service in refuting a claim of discrimination. Employers should always maintain a meticulous employee history documenting system, and after taking adverse employment action against an employee, articulate carefully and accurately a legitimate, non-discriminatory reason for taking such action.
© C2 Essentials, Inc., Office of General Counsel
 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).