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Age discrimination suit against FedEx can proceed

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A Federal Express Corp. employee who was terminated can pursue an age discrimination lawsuit against the company even though he was replaced by an older worker, a federal appeals court ruled Wednesday, in overturning a lower court ruling.

The unanimous opinion by a three-judge panel concluded that although Gerard Howley may have technically violated the Memphis, Tennessee-based company’s rules, alleged comments made by a supervisor provided evidence of possible age discrimination, according to the ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Gerard Howley v. Federal Express Corp.

Mr. Howley, who worked at FedEx for 21 years beginning in 1992, was terminated by the company in 2013 when he was 54 for allegedly violating company policy in three instances: telling an employee he was “pissing him off”; failing to respond to an employee’s email regarding her request for time off under the Family Medical Leave Act; and refusing a subordinate’s request to speak to an upset customer. A 57-year-old replaced him.

Mr. Howley filed a complaint charging age discrimination under Michigan’s Elliot-Larsen Civil Rights Act in U.S. District Court in Detroit, which granted FedEx summary judgment dismissing the case. Mr. Howley then appealed.

“This court is struck by the relatively minor nature of Howley’s offense and wonders whether any of them merited termination,” said the ruling. 

In the first instance, “evidence in the record exists to show that much more egregious language than that used by Howley was regularly used in the workplace,” including by the supervisor who had him terminated, said the ruling.

The second disciplinary action “also seems unjustified,” while his behavior in the third case “appears fairly innocuous,” said the ruling.

In addition, “there are the suspicious circumstances surrounding Howley’s termination that give rise to a negative inference of age discrimination,” said the ruling. 

These include an inquiry his supervisor made about how much money Mr. Howley made, and his expression of surprise at the length of his FedEx employment; the supervisor asking employees in the work group about their retirement plans and “why they were still working”; and his concern employees “being old and not keeping up with technology” and should have retired.

Under the circumstances presented in this case, “we believe that an inference can be drawn that Howley was terminated based on his age,” said the court.

Mr. Howley’s replacement by an older employee “is not dispositive,” said the ruling, in overturning the summary judgment and remanding the case for further proceedings.