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| 2 minutes read

'40' - The Magic Number Under the ADEA, but Still Not Enough for Constructive Discharge

Last week, the Tenth Circuit gave renewed life to a just barely 40-year-old employee’s age discrimination claim. The plaintiff, Brian Waggoner, accused his former employer Frito-Lay of failing to promote him because of his age after the company selected a 27-year-old applicant instead of him for a processing manager position they had both applied for. This was not the first time Waggoner had lost out to a younger employee. Indeed, he had already been passed over for promotions three times, each time in favor of employees in their 20s. But when, just after Waggoner turned 40, he applied for another promotion and was, again, passed over for a younger employee, he quit and filed two claims for discrimination under the Age Discrimination in Employment Act (“ADEA”), one for failure to promote and another for constructive discharge.

Waggoner’s claims were initially both dismissed on summary judgment. The lower court reasoned,  "The fact that Plaintiff was turned down for multiple similar positions in his younger years, when he was not in the category of protected older workers [covered by the ADEA], meant the most recent rejection did not support an inference of age discrimination. Rather, it implies that Plaintiff's work history or qualifications were not considered by [his employer] as being superior to other applicants." 

The Tenth Circuit disagreed, at least in part. It reversed the lower court’s summary judgment ruling on the failure to promote claim and instructed the lower court to let that claim proceed to trial. The Tenth Circuit explained, "Waggoner’s evidence is certainly not overwhelming, but it sufficiently controverts [his director's] proffered reasoning for not promoting him” to permit the claim to go to a jury.

The employee’s constructive discharge claim was not so successful. Indeed, the Tenth Circuit used this opportunity to remind employers and employees alike of the high bar that must be met to establish a claim of constructive discharge. Simply put, as a matter of law, an employee who quits because he was denied a promotion, even if discriminatory, cannot hold his employer accountable for that termination. According to the Tenth Circuit, a reasonable person, even one who believed he would never be provided “an equal opportunity to be promoted” and that his position was "in jeopardy" because of his age, would not then believe that he had no other choice but to quit.

While employees (even those who believe they are being discriminated against) quit at their own risk, employers also can learn valuable lessons from this case. Namely, managers entrusted with employment decision-making power must be keen on what little evidence is needed to permit a claim to go to trial. Here, Waggoner "created only a weak issue of fact" to controvert Frito-Lay's evidence, which the court specifically explained was "not abundant, uncontroverted, or independent." That hiring manager now has to take the stand and defend his decision. With more of the workforce hitting 40 every day, a formalized interview process, with supporting evidence to back up decisions, can help keep your company from being the next to need our employment law litigation services.