Dennis Willard, by the account offered by the Sixth Circuit, is "a successful, veteran car salesman," who ranked in the top 125 of Ford's 3,500 national salesforce. He was 63, when he was fired, and probably it could be found driven, abrasive, pushy and better at his job than any of his co-workers were at their job. The car dealer trumped up a reason to try and justify his firing. The district court, Hon. Arthur J. Tarnow of the Eastern District of Michigan, blew it and granted summary judgment to Willard's employer. The Sixth Circuit corrected this error and reversed the district court in Willard v. Huntington Ford. This is a textbook age discrimination case.
First, as noted above, Willard is a successful and veteran car salesman. Willard's success yielded further benefits: he regularly earned $100,000+ annually than his younger colleagues and he was awarded placement at a sales desk right at the front door, giving him first crack at new customers. Second, while Willard had a reputation for being pushy (a co-worker described him as an "abrasive bully"), he worked in an environment the Sixth Circuit described as "anxiety-provoking and intense" where "interpersonal friction" and "raised voices" flared occasionally. Willard was the oldest of the full-time new car salespersons, a fact that rubbed wrong his supervisors, who inquired of his retirement plans, insulted him with references such as "grandpa," "dinosaur," and "over the hill," while slowing down his transaction paperwork to favor younger salespersons. Willard was welcomed to leave when he complained of this mistreatment. The supervisors apparently believed Willard's desk right at the front door presented an unfavorable first impression, as he was told he was "too old to be sitting by the door" and that "younger salesmen" should have the spot, a comment made tellingly the week prior to Willard's firing. The supervisors also took pains to ridicule Willard in front of co-workers, describing him as "old and fat."
Willard was fired in December 2016 (about 3 1/4 years before the Sixth Circuit's ruling on appeal that he was entitled to a trial; is justice delayed justice denied?), and the employer cited Willard's disciplinary history as some justification for his firing. One prior instance in Feb. 2011 involved an instance where he blew up on the sales floor and cursed his supervisor, receiving a half-day suspension. In August 2012, he'd been suspended for a day and a half for forging a customer's signature on a transaction document, something that was completed properly. The final incident came when Willard complained to a co-worker regarding her mishandling of a transaction he'd put together, and she, according to the employer's general manager, escalated the situation to a slight physical altercation and eventually resigned. Willard was suspended initially for a week and then fired with the employer claiming that he did not show back up for work when scheduled. Willard's desk spot was assigned to a 56 year old colleague and, a mere month later, a 52 year old salesman was hired.
The Sixth Circuit began its analysis by considering the fourth factor of Willard's prima facie case, whether he'd shown "circumstances that support an inference of discrimination." Willard accomplished this in two ways: evidence that he was replaced by a younger new-car salesperson and that younger salespersons were treated better. The dealer's employee census showed the replacement since the hiring restored the number of new car salespersons to the number as of Willard's firing. The employer's argument that too much time (about a month) passed to show the new hire replaced Willard was rejected summarily: "If a month is too much time by Huntington Ford's account, what is not?" There was evidence that Willard's sales manager regularly slow-walked his transaction paperwork compared with how he handled that of Willard's younger counterparts, and this preferential treatment was sufficient to support an inference of discrimination at the prima facie stage.
Since the employer articulated a non-discriminatory rationale -- Willard failed to report back to work, his confrontation with the former employee who escalated the situation alone justified his firing and he had a disciplinary record -- the court then moved considering whether Willard had presented evidence that these reasons were false and untrue, that they were lies offered in a attempt to obscure age discrimination.
The Sixth Circuit rejected the first, because Willard testified in his deposition that he was not informed when he was to return to work following his suspension. The district court had failed to credit Willard's testimony, causing the Sixth Circuit to observe that a "plaintiff's opinion testimony is evidence, and it is for the jury to determine its relative truth and weight." Willard's "excellent" attendance record also cast further doubt on the employer's claim that Willard failed to show up for work when expected; an assertion contrary to Willard's established record as a high achiever.
As to the second reason -- the confrontation with the other employee -- the Sixth Circuit found that the record indicated the other employee "was at fault" and that Willard had acted to de-escalate the incident. The explanation was also undercut by the employer's president's testimony that he was unsure whether Willard would have been fired had he come back to work when the company claimed he was supposed to. This equivocation is contrary to the assertion that the incident required Willard's firing.
The court concluded that the employer's reliance on Willard's supposed disciplinary history, because the last incident for which he was disciplined was four years earlier. In the interim, Willard received sales awards from the dealer and from Ford. The court also cited its prior decision, Vincent v. Brewer Co., 514 F.3d 489 (6th Cir. 2007), where it concluded that a 5-6 week delay between the employer's adverse action and the last incident of supposed employee misconduct was indicative of pretext.
The statements -- those referring to Willard as "dinosaur," "grandpa," "over-the-hill," and "old and fat" -- by the employer's managing agents, who participated in the decision-making process to fire Willard, were either "an overtly negative comment about Willard's age or an ageist slur," and the retirement comments required "only a miniscule inference" to conclude they evidence an age bias and "a wish that Willard no longer work at" the car dealership.
And so Willard's case was sent back to the district court for trial, which seems unlikely to occur before 4 years have lapsed from when Willard was fired.
The Sixth Circuit's opinion was authored by Judge Karen Moore and joined by Judges Raymond Kethledge and John K. Bush.
Robert L. Abell
www.RobertAbellLaw.com
