It Isn’t All About the Ultimate Decisionmaker—Fourth Circuit Vacates Summary Judgment in Favor of Employer in ADEA Case
As employers, we often focus on what knowledge was in the hands of the ultimate decisionmaker at the time a crucial employment decision is made. However, as the Fourth Circuit reminds us in its decision in Harris v. Powhatan County School Board, No. 12-2091, the knowledge and intent of those who have the power and ability to influence those decisionmakers also must be considered and can support a claim for discrimination.
Alexander Harris was a seventy-two-year-old African American custodial worker whose position as a custodial worker for the Powhatan County School System was eliminated in 2009 after fifty-two years of employment.
Harris had notified the school board of his intent to return to work for the 2009-2010 school year, but his supervisor had not forwarded on the return-to-work form in keeping with regular practice, but had kept it, apparently to discuss potential retirement with Harris. The supervisor also told Harris that his position might be eliminated even if he did want to return to work. Harris had previously expressed that he was considering retirement, but also said that his retirement was contingent upon his receipt of money for annual leave that he claimed to have been due pursuant to an unwritten agreement with the school board that would allow him to be compensated for leave beyond the cap on annual leave accrual. The supervisor and superintendent both recommended that Harris’s position be eliminated. The superintendent informed the school board that, although Harris had expressed an intent to retire, she did not believe he would leave unless he received a large sum of money. The board ultimately voted to eliminate Harris’s position. The minutes from the meeting list Harris as having retired. Two other custodial positions were eliminated, both of which were occupied by individuals over the age of seventy. Harris’s supervisory duties were reassigned to a younger Caucasian man who was already employed with the school system (and given a $10,000 stipend based on the additional responsibilities) and two other employees in the maintenance department. Harris asserted claims against the school board for discrimination on the bases of race and age.
The district court granted summary judgment to the employer, finding that although Harris had made prima facie cases of race and age discrimination, he failed to show pretext. The Fourth Circuit disagreed, finding that Harris had provided sufficient evidence to support his claim of discrimination on the basis of age to defeat summary judgment. [1]
The school board had given two reasons for its elimination of Harris’s position—its belief that he wanted to retire and its need to address a budgetary shortfall. The Fourth Circuit found that a reasonable jury could find that Harris did not indicate a clear intent to retire. In fact, he indicated his intent to return and wholly disputed testimony provided by the school board that he expressed an intent to retire. Moreover, in a letter to the superintendent, he stated that he was considering retirement, but wanted to inquire about the amount he claimed was owed for annual leave. The court found that Harris had shown there to be a question of fact regarding his expressed intention to retire.
The Fourth Circuit held that the district court was wrong to determine that only the belief of the school board itself (and not Harris’s supervisor and superintendent) was relevant to assessing pretext. The district court basically found the knowledge or intent of the superintendent was not relevant and that the genuine belief of the ultimate decisionmaker, the school board, that Harris wanted to retire was the only material issue. However, as the Fourth Circuit pointed out, quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004), “Title VII and the ADEA do not limit the discrimination inquiry to the actions or statements of formal decisionmakers for the employer. Such a construction of those discrimination statutes would thwart the very purpose of the acts by allowing employers to insulate themselves from liability simply by hiding behind the blind approvals, albeit non-biased, of formal decisionmakers.” Therefore, explained the Fourth Circuit, it was proper to attribute the superintendent’s and even, to a lesser degree, the supervisor’s, motives and knowledge to the board.
Furthermore, in fact, the Fourth Circuit concluded, the district court improperly stated that the board was unaware about Harris’s position with regard to retirement as the superintendent had shared with the board Harris’s contention that he wanted to receive payment for annual leave as a condition of retirement. Harris also presented sufficient evidence to suggest that the second reason for the elimination (the budgetary shortfall) was pretextual. The supervisor’s pressure on Harris to retire and failure to pass along his written intent to return, along with the fact that each of the custodial positions eliminated were held by individuals over the age of seventy, could demonstrate pretext. Furthermore, the superintendent had acknowledged the board had never considered the elimination without the understanding that Harris wanted to retire and she conceded that she could not be sure that the elimination would have occurred anyway.
What does this mean to you? Remember that just because an individual doesn’t have the final call with regard to an employment decision does not mean that his or her knowledge or intent is irrelevant. In fact, if that supervisor or manager has the ability to influence the ultimate decisionmaker, his or her knowledge and motives are highly relevant and can be used to support a claim of discrimination.
[1] The Fourth Circuit upheld the district court’s conclusion that Harris had failed to create a genuine issue of fact as to whether race played a role in his termination and thus summary judgment was appropriate as to Harris’s claim of discrimination in violation of Title VII on the basis of race.
