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Court Gives FedEx Worker Another Chance to Prove Age Discrimination

By William Vogeler, Esq. on March 21, 2017 | Last updated on March 21, 2019

Reinstating an age discrimination case, a federal appeals court said "suspicious circumstances" surrounded the termination of a former FedEx manager.

The U.S. Sixth Circuit Court of Appeals said Gerard Howley, who had worked for the company 21 years, never had a reprimand until a new supervisor took over. A short time later, the new supervisor piled on warnings and then fired Howley for poor performance. The appeals court didn't buy it.

"Most significantly, there are the suspicious circumstances surrounding Howley's termination that give rise to a negative inference of age discrimination," Judge Eric Lee Clay wrote for the panel in Howley v. Federal Express Corporation.

"FedEx contends that it had legitimate reasons for issuing a warning to Howley on all three occasions for which he was disciplined," the panel continued. "However, this Court is struck by the relatively minor nature of Howley's offenses and wonders whether any of them merited termination."

"Should Have Retired"

Howley worked for FedEx from 1992 until his termination on November 13, 2013. At the time of his termination, Howley was a dispatch manager at the company's office in Novi, Michigan. His responsibilities included supervising FedEx's dispatchers and performing various administrative and managerial tasks.

Jaime Haboush was Howley's supervisor during the last few years of his employment. In the final 12 months, Haboush wrote him up three times for minor violations of the employee handbook. This included: using the words "pissed off" to a female employee; failing to respond to one email from a co-worker about covering a shift; and declining to deal with a customer who was being served by another worker.

Howley was fired after the final incident, but sued for age discrimination based on comments Haboush had made. He alleged that Haboush: was surprised Howley was still working after so many years; asked employees about their retirement plans and "why they were still working"; and expressed concern that employees were "old and not keeping up with technology ... and should have retired."

A trial court granted the defendants' motion for summary judgment, concluding there were no material facts in dispute to support an age discrimination claim.

Special Delivery Remand

On appeal, the judges saw the facts differently and remanded. They said Haboush's alleged remarks might be viewed as too attenuated from the termination process to constitute direct evidence of discrimination, but an inference could be made.

"While under some circumstances, this Court might be disinclined to find that these statements, by themselves, are sufficient to constitute direct evidence of age-related bias, under the circumstances presented in the instant case, we believe that an inference can be drawn that Howley was terminated based on his age," the judges said.

The court was persuaded, in part, by the many years that Howley had worked without a complaint. The judges also considered the fact that all of the reprimands were for minor infractions and occurred in a relatively short period of time.

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