In 2007, Cal-Western Packaging Corporation acted on the complaints of a female employee that Wayne Jackson had engaged in sexually harassing behavior on several occasions, in violation of the law and of the organization’s written policies. The complaining female employee alleged that Jackson had asked to see her breasts, commented that her boyfriend must like “big boobs,” and that on many occasions had made inappropriate statements in front of her and her female coworkers. She also reported that every time she saw Jackson, he tried to touch her and that he had once cornered her and asked her to raise her shirt.
The company performed an investigation, led by its chief operating officer, Jimmy Phelps. The complaining employee’s allegations were corroborated by several other employees, both male and female. The company also hired a lawyer to do a separate investigation, which confirmed Phelps’ findings. The employer terminated Jackson for harassment.
Jackson was 69 at the time. He had worked for Cal-Western for nearly 20 years. A 42-year old employee replaced him.
Jackson sued his former employer for age discrimination. His evidence consisted of one stray remark by Phelps, who Jackson claimed had commented in 2006 to another employee that Jackson was “an old gray-haired fart.” The district court ruled that Jackson failed to show that his termination was pretextual and granted summary judgment in favor of the employer. Jackson appealed.
In a March 2010 decision from the U.S. Circuit Court of Appeals for the 5th Circuit (Jackson v. Cal-Western Packaging Corporation), the Circuit Court found that the employer’s articulated, non-discriminatory reason for terminating Wayne Jackson—his sexually harassment of a co-worker—was not a pretext for firing him because of his age. And, the Court pointed out that the alleged age-based comment was made in 2006—prior to the sex harassment allegations and thus was not related to the termination. The Court found that the overwhelming evidence showed Jackson was fired for violation of the company’s sexual harassment policy.
Bottom Line:
This case illustrates the importance of the investigation process—that it be thorough, prompt, and objective. It also illustrates the fact that even a stray ageist comment made years before may find its way into a legal argument many years later. Employees and managers should be trained to refrain from making inappropriate comments based on an employee’s protected characteristics such as age, gender, color, national origin, race, religion, disability, sexual orientation, pregnancy, marital, or military status or other protected classifications.
