A discharged employee’s age discrimination claim was improperly dismissed because there was direct evidence of discriminatory animus in statements allegedly made during the employee’s firing, the 6th U.S. Circuit Court of Appeals has ruled.

In Lowe v Walbro, LLC (Docket No. 19-2386), the plaintiff was 60 years old when he was fired by the defendant, Walbro, LLC. The plaintiff had worked for the defendant for more than 40 years. At the time of his firing, a supervisor allegedly made this comment: “You’re kind of  getting up there in years, you’re at retirement age.”

The plaintiff then filed this employment discrimination claim against the defendant in the U.S. District Court, Eastern District of Michigan. The plaintiff asserted the comment made during his firing constituted direct evidence of discrimination under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). U.S. District Court Judge Thomas L. Ludington granted summary judgment for the defendant.

The 6th Circuit reversed and remanded.

“In short, although there is evidence indicating that Walbro might have fired Lowe even in the absence of any discriminatory animus, the company has not met its burden to establish as a matter of law that it would have done so,” the 6th Circuit wrote. “We therefore hold that Lowe has raised a genuine dispute of material fact as to whether Walbro violated the ELCRA under a direct-evidence theory.”

Judge Ronald Lee Gilman wrote the 6th Circuit’s opinion, joined by Judge John K. Bush and Judge Chad A. Readler.

DeBrow Directly On Point

In his lawsuit, the plaintiff’s primary argument was that the comment about the plaintiff’s age that was made by Tom Davidson, a supervisor, was direct evidence of discrimination. According to the plaintiff, Davidson made the following statement at the time the plaintiff was fired: “We have no difficulty concluding that the ‘you’re kind of getting up there in years, you’re at retirement age.”

The 6th Circuit agreed with the plaintiff, finding that the Michigan Supreme Court’s decision in DeBrow v Century 21 Great Lakes, Inc, 463 Mich 534 (2001), was “on all fours” with the present case.

In DeBrow, the defendant had discharged the plaintiff at age 48. The Michigan Supreme Court ruled that the plaintiff presented enough direct evidence of unlawful age discrimination to pursue a claim. The plaintiff had testified in his deposition that, in the conversation that took place during his firing, his superior told him that he was “getting too old for this s---.” According to the Michigan Supreme Court, although this remark was subject to various interpretations, it could be taken as a literal statement that the plaintiff was getting too old for his job and that this was a factor in the decision to fire him. Because it was not for the appellate courts or the trial court to make factual findings or weigh witness credibility when deciding a motion for summary disposition, the Michigan Supreme Court remanded the case to the trial court for further proceedings on the plaintiff’s age discrimination claim.

“As in DeBrow, the statement in question was made at the meeting in which Lowe was fired, and it was made by Lowe’s supervisor,” the 6th Circuit noted. “The evidence of discrimination is, if anything, even stronger than in DeBrow because Davidson’s statement was made in direct response to Lowe’s question about why he was being fired.”

According to the 6th Circuit, when viewing the evidence in a light most favorable to the plaintiff, Davidson’s remark was a “literal statement” that the plaintiff’s age was the actual reason why he was discharged. “That is the textbook definition of what the ELCRA prohibits: discharging an employee ‘because of’ the employee’s age. … Other Michigan caselaw reinforces the point that statements similar to Davidson’s - even if not made at the time of firing - may constitute direct evidence of discrimination.”

Similar to DeBrow, “Davidson’s remark by itself could lead a reasonable jury to find that the company acted on a predisposition to discriminate on the basis of age in taking its adverse employment action against Lowe,” the 6th Circuit explained. “We therefore conclude that Lowe has met his burden of raising a genuine dispute of material fact as to whether Walbro’s ‘discriminatory animus was more likely than not a ‘substantial’ or ‘motivating’ factor in the decision.’ … In the alternative, we would conclude that Lowe has raised a genuine dispute of material fact as to whether the animus was a but-for cause of his termination as well.”

Therefore, “based on all of this contradictory evidence, … Walbro has not demonstrated as a matter of law that it would have terminated Lowe regardless of any age-related animus,” the 6th Circuit held.