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Advice for Employers - Words Matter!
Advice for Employers - Words Matter, Especially When it Comes to Fact-Based Opinions

In a recent case decided by the Sixth Circuit Court of Appeals, an employer found out the hard way that a managerial employee’s ill-chosen words transformed a “slam-dunk” dismissal of an age discrimination case into an uncertain march toward trial.

Case Background
The case arose when the Tecumsch Public Schools (“TPS”) refused to renew the contract of 56-year-old high school principal Robert Scheick. The non-renewal was based on well-documented budget constraints and numerous incidents of dissatisfaction with Scheick’s job performance. Significantly, TPS’s superintendent, McAran, who was 10 years older than Scheick, initially absorbed Scheick’s duties, lending credence to the budget constraint rationale and calling into question the suggestion that Scheick’s age was a factor in the non-renewal of his contract.

As for Scheick’s unsatisfactory job performance, superintendent McAran was able to point to complaints he had received from parents, staff and board members reflecting growing dissatisfaction with Scheick’s performance, and with his perceived lack of leadership. Nevertheless, Scheick filed suit when his contract was not renewed, alleging that the decision was based on his age rather than the reasons cited by TPS.

In support of his claim of age discrimination, Scheick relied on three statements allegedly made by McAran. According to Scheick, McAran told him:

  1. That the school board wanted him to retire; 
  2. That “they” just want someone younger for the position of principal; and
  3. That “they” wanted someone younger for both the principal and superintendent positions.

McAran disputed Scheick’s account of the conversations.

The trial court considered all of the evidence and determined that Scheick’s case should be dismissed without a trial. It found that Scheick had presented no “direct evidence” of age discrimination (that is, evidence that proves a fact without requiring any inferences), that Scheick was not replaced by a younger person (since, at least initially, the superintendent had taken over his duties), and that there was no evidence that TPS’s reasons for failing to renew the contract were pretextual. Scheick appealed this decision to the Sixth Circuit Court of Appeals (which decides appeals from federal trial courts in Tennessee, Kentucky, Ohio and Michigan).

The Sixth Circuit reversed the trial court’s dismissal, based on its conclusion that two of McAran’s three alleged statements could be considered “direct evidence” of age discrimination.

Specifically, the Sixth Circuit found that the two statements in which TPS allegedly indicated that it wanted someone younger constituted direct evidence. While this fact alone did not preclude dismissal of Scheick’s suit, it tilted the balance; the Court found that it was possible that, based on such direct evidence, a jury could believe that Scheick’s contract would have been renewed but for age-based discrimination.

Significance of the Opinion for Employers
Significantly, the Court’s opinion does not indicate whether, if McAran actually made the statements, he had any factual basis for his assertion that “they” wanted a younger person. If the statements were made as represented by Scheick, it is possible that McAran may simply have surmised that this was the case, and conveyed his supposition in such way as to cause Scheick to believe he was stating a known fact.

If so, this case points to the critical importance of alerting those in supervisory and managerial positions that the sharing of mere suppositions with subordinates may have unintended and potentially harmful consequences. Assuming, as is entirely possible, that McAran merely speculated that TPS’ Board wanted a younger person for the position of principal, by conveying this speculation to Scheick, as alleged, he unfairly compromised his employer’s ability to defend what otherwise would have been deemed a legitimate employment decision.

Although employers should not prohibit supervisors and managers from stating fact-based opinions about the existence of discrimination in the workplace (which all employees are permitted by law to do), they should make managerial employees aware of the danger of voicing unfounded speculation. Such employees should be aware that their words have consequences, and should be used responsibly. By refraining from voicing mere speculation, high-level employees may spare their employers the sort of unfavorable result faced by TPS in this case.


 

Image Credit: iStock

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