Firing the Older Worker You Just Hired is Probably Not Age Discrimination

The Minnesota Court of Appeals recently dismissed an employee’s age discrimination claim because the same manager who knowingly hired the recently retired applicant fired her just six months later.

Welcome back from retirement

In September, 2012, Penny Kandt retired from her job as investigation supervisor for the Minnesota Department of Commerce (MDOC) with the understanding that she would shortly be rehired in a nonsupervisory role. A month later, MDOC Director Robert Hernz followed through by hiring Kandt into the role of Insurance Fraud Specialist subject to a 12-month probationary period.

Unfortunately, Kandt’s performance was marked by various failures to observe MDOC policies. On one occasion, she signed a subpoena identifying herself as an “acting director” (she explained that she did this in “interest of efficiency”).  She also submitted late investigative reports, falsified a time sheet,  arrived to work late on several occasions, provided late notices for absences and ignored departmental policy requiring her to wear her firearm while on duty.

On May 3, 2013, Hernz told Kandt that she had not met the expectations of her probationary position and that she was terminated. Kandt eventually was replaced by a much younger woman.

Kandt then sued for age and sex discrimination under the Minnesota Human Rights Act. After the lower court dismissed the case before trial, Kandt appealed to the Minnesota Court of Appeals.

She couldn’t have aged that much

The Appeals Court affirmed the dismissal of the age discrimination claim, noting that Kandt simply had no evidence that the MDOC’s stated reasons for the termination – poor job performance – were a pretext for unlawful age discrimination. Kandt argued that Supervisor Jonathan Ferris had once remarked that the MDOC had “finally gotten rid of all the deadwood”, which she interpreted to be directed at older workers.  The court disagreed, noting first that the statement was inadmissible hearsay.  They then concluded that since deadwood is typically defined as “useless personnel or material”, the statement was likely a reference to poor performers, not older workers.

The Appeals Court then observed that the MDOC’s reasons for the termination were not likely a pretext because the same person (Hernz) who hired Kandt also fired her. The court stated. “Little if any likelihood exists that the persons hiring an employee with knowledge of her age would change course six months later and fire her for that reason.”

The Court also affirmed the dismissal of the sex discrimination claim since the hiring of a female to replace a female failed to create even the inference of an unlawful gender-based motivation for the termination.

Bottom line

This case relies on what is often called the “Same Supervisor Rule”, namely that if the same supervisor hires an employee and then fires that same individual in a relatively short period of time, it is unlikely that the termination was motivated by a protected characteristic.

In this case, since Hernz knew that Kandt was an older worker and hired her anyway, it just makes no sense to conclude that he would have terminated her for age-based reasons just a few months later.

This rule usually does not come into play because it requires a very precise set of circumstances.  When it does, however, it can be a powerful argument for the employer.