Tammy Woolley
Does this sound like a bad hire?
• Shortly after the new account manager at Presidio, Inc., started work, he allegedly "spoke incoherently" at a client lunch and had to apologize for his behavior. He said it was his medications.
• Then he accidentally emailed confidential and proprietary pricing information to a major account. According to his boss, it was one of a string of errors.
• He made inappropriate comments to a colleague at a professional dinner and had to send another written apology.
• Other employees expressed concern when he asked about his access to the office when no one else was there.
• He also made a poor presentation for which he apologized to his boss by text, inaccurately forecast his expected business, and (allegedly) failed to meet his sales goals. He says that the goals were exceeded, based on his efforts, shortly after his termination.
There was a young woman working in the consulting office next door and the account manager visited the office frequently because someone there had connections with a customer whose business he was trying to get. But the connection may not have been the only reason he spent a lot of time at the office next door. One day, about eight months after he had been hired, he sent the young woman a text on LinkedIn, saying,
"I love chatting with you, and I like you. Maybe we could grab dinner sometime, or do you think I might be too young for you? :)"
The young woman replied no, and said that he was making her very uncomfortable. She reported the overture to her HR manager, who told the account manager’s boss.
Note: One request for a date, assuming the account manager did not bother the woman again, would generally not be enough for a sexual harassment claim on her part.
His boss then called him in and grilled him. According to the account manager, much of the bawling out pertained to the age difference between him, who was in his mid-50s, and the woman, who was 21. It is undisputed that when the boss reported the situation in an email to HR, he included the age of the woman.
The company then decided to let the account manager resign. He was replaced by a 30-year-old, who took over his only account that generated revenue, plus a few that did not. The other accounts were distributed among his boss and two other account managers who were in their 50s.
The account manager then sued in federal court in Virginia for age discrimination -- even though he was hired at age 54, had a lot of problems on the job and was allowed to resign only about eight months later, and the account manager’s boss was about the same age as the account manager. With these facts, it is no surprise that the company moved for summary judgment.
But the federal judge has decided to let the case go to trial because of the references to the age difference between the account manager and the 21-year-old woman in the chewing out session. According to the court, which seemed generally sympathetic to the employer's position, it appeared that the age difference between the account manager and the woman was what riled up the boss so much. Presumably, if the account manager had hit on a 50-year-old woman instead of a 21-year-old, he would not have been terminated. According to the Judge, his boss's reference to the age gap sent the case to a jury.
Common Sense Counsel:
So, employers, here is one more thing to watch out for. According to at least this one court, age gaps cannot be taken into consideration when assessing whether an employee's behavior violates company policies. So, loose employers’ lips can result in your company in front of a jury to explain. Better not criticize an employee for "robbing the cradle."
Good HR and supervisor training are the keys to risk reduction.
Tammy C. Woolley is Senior Counsel working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, Alabama, office and can be contacted at twoolley@constangy.com or 205.226.5468. She thanks her Partners for their blog on this issue.
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October 25, 2020 at 07:00PM
https://oanow.com/business/local/loose-lips-can-send-case-to-federal-jury/article_5a8379ce-1582-11eb-b4b0-fba4a0edc072.html
Loose lips can send case to federal jury - Opelika Auburn News
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